Rajasthan High Court - Jodhpur
Hemprakash Sharma & Ors vs State Of Raj. & Ors on 21 October, 2016
Author: Govind Mathur
Bench: Govind Mathur
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IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR.
..
:: J U D G M E N T ::
D.B. CIVIL SPECIAL APPEAL NO. 762/2016.
IN
D.B. CIVIL WRIT PETITION NO. 11696/2016.
..
APPELLANTS:-
1. Hemprakash Sharma son of Shri Rewa Shankar Ji,
aged about 40 years, Resident of Outside Bhatpura
Darwaja, Pratapgarh.
2. Amit Sharma son of Shri Jagdish Chandra Sharma,
aged about 40 years, Resident of Maruti Hardware &
Paints, Near New Post Office, Nai Abadi, Pratapgarh.
3. Indrasen Sharma son of Shri Vardichand Ji, aged
about 50 years, Resident of Outside Bhatpura
Darwaja, Pratapgarh.
VERSUS
RESPONDENTS:-
1. State of Rajsthan through Secretary (Sports),
Government of Rajasthan, Secretarirate, Jaipur.
2. Registrar, Cooperative Societies , Nehru Sahakar
Bhawan, 22 Godown, Jaipur.
3. Deputy Registrar-cum-Registrar Societies,
Cooperative Societies, Pratapgarh.
...
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Date of Judgment :: 21st October, 2016.
PRESENT
HON'BLE MR. JUSTICE GOVIND MATHUR
HON'BLE MR. JUSTICE DEEPAK MAHESHWARI
Mr. Rajesh Joshi, Senior Advocate assisted by
Mr. Harshit Bhurani ]
Mr. Vineet R. Dave ], for the appellants.
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BY THE COURT:
By the order impugned dated 6th October, 2016, the learned Single Bench dismissed the petition for writ preferred by the appellants on the count of availability of statutory alternative remedy under Section 35 of the Rajasthan Sports (Registration, Recognition and Regulation of Associations) Act, 2005 (hereinafter to be referred as 'the Act of 2005').
The submission of the learned counsel for the appellants is that the order which was to be adjudicated by the learned Single Bench has been passed by the Registrar Cooperative Societies without having jurisdiction, therefore, doctrine to approach writ-Court only after exhausting of remedies does not apply.
It is asserted that the Court should have examined the facts that the Registrar Cooperative Societies, while passing the order dated 27th September, 2016 (Annex. 17 3 to the writ petition), exceeded the jurisdiction vested with it.
We do not find any merit in the argument advanced. True it is, the concept of alternative remedy is not a rule of law but a self-imposed restriction in it policy adopted by the writ-Courts. It is also well settled that availability of the alternative remedy does not bar the writ jurisdiction in mandatorily form and further that if an order is passed in violation of the principles of natural justice or is without jurisdiction, the Court may ignore the statutory remedy, if any available. However, it does not mean that wherein, violation of principles of natural justice or any issue is raised with regard to jurisdiction, it is not obligatory for the writ-Court to entertain a petition for writ.
A Division Bench of this Court in the case Balotra Water Pollution Control & Research Foundation Trust (BWPCRT) Vs. State of Rajasthan & Ors. reported in RLW 2016 (1) P. 671 [DBCWP No.10986/2015, decided on 8th October, 2015] examined the aspect of availability of statutory alternative remedy and held as under:-
"As per the Act of 2010 a remedy is available to the petitioner by way of filing an appeal before Hon'ble the Supreme Court of India as per Section 22. The 4 submission of learned counsel is that availability of statutory remedy under the Act of 2010 does not bar writ jurisdiction as the Tribunal exceeded its jurisdictional authority by issuing the interim directions without examining the question pertaining to limitation. On examination of all relevant legal and factual issues, we do not find any merit in the argument advanced.
On enforcement of the Constitution on January 26, 1950, the citizens of our country received a strong shield of fundamental and constitutional rights - the rights personal as well as collective. Part-III of the Constitution, that covers the fundamental rights, ensures right to equality, right to freedom, right against exportation, right to freedom of religion and cultural and educational rights. Some of the rights given are attached to each and every "person" irrespective of their citizenship. The other parts of the Constitution confers several constitutional rights to the citizens of India. All these rights would have been of no meaning, if adequate safeguard would have not been given to enforce and protect such rights. Under Article 32 of the Constitution of India, remedy to ensure and protect fundamental rights is given as a fundamental right, but a very broad discretion is given to High Courts under Article 226 of the Constitution of India to issue prerogative writs, orders and directions within their territorial jurisdiction to ensure enforcement, extension and protection of the fundamental, constitutional and other legal rights of the subjects. The remedy given under Article 226 being discretionary is subject to several checks. The checks mostly are self-imposed and as a rule of policy with a view that extraordinary remedy should always be exercised in extraordinary circumstances only. The remedy given must not be treated at par or alike other statutory remedies. A 5 prominent self-imposed restriction in exercise the discretion given under Article 226 of the Constitution is the principle of exhausting all other statutory remedies before approaching writ court. It is a rule of convenience and discretion and does not oust the jurisdiction of a writ court, but indicates a caution in exercising extraordinary constitutional authority. The deviation from this principle is permissible if the relief is sought with well founded allegation of violation of fundamental rights, if the right has been or being threatened to be infringed by a law which itself is ultra-vires, if there is a complete lack of jurisdiction in the officer or the authority issuing impugned order or action, if there is flagrant violation of principles of natural justice, if the prevention of public injury and vindication of public justice requires the extraordinary recourse and if the court is satisfied that the remedy available is not efficacious enough to protect the injury caused or may be caused. This principle applies with more vigour, if a party is seeking a writ in the nature of certiorari to get an order passed by judicial or quasi judicial authority set aside.
Hon'ble Supreme Court while dealing with this aspect of the doctrine of exhausting all other remedies before approaching writ court in the case of State of U.P. v. Mohammad Nooh, reported in AIR 1958 SC 86, held as under:-
"11. On the authorities referred to above it appears to us that there may conceivably be cases-and the instant case is in point-where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its 6 decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it confirmed what ex facie was a nullity for reasons aforementioned. This would be so all the more if the tribunals holding the original trial and the tribunals hearing the appeal or revision were merely departmental tribunals composed of persons belonging to the departmental hierarchy without adequate legal training and background and whose glaring lapses occasionally come to our notice. The superior court will ordinarily decline to interfere by issuing certiorari and all we say is that in a proper case of the kind mentioned above it has the power to do so and may and should exercise it."
The law laid down by Hon'ble the Apex Court in State of U.P. v. Mohammad Nooh (supra) still holds the field and in view of the law laid down a writ in the nature of certiorari can be issued even if a remedy of appeal/revision is available on arriving at a conclusion 7 that an inferior court or Tribunal of first instance has committed an error so patent that may not be cured or obliterated by adopting the other statutory remedy. The doctrine of availability of alternative remedy may also be ignored, if the inferior court or Tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings of a writ in the manner that that is contrary to the rules of natural justice.
The petitioner herein seeks a deviation from the doctrine of exhausting all other remedies before approaching writ court with allegation that the tribunal under the orders impugned exceeded jurisdiction vested with it as the original applicant is barred by limitation and further the issue agitated in this regard has yet not been decided.
True it is, an objection about filing of the original application within the limitation prescribed is pending consideration before the Tribunal and in light of the law laid down by Hon'ble Supreme Court in Foreshore Cooperative Housing Society Limited v. Praveen D. Desai & Ors. (supra), a plea of limitation concerns the jurisdiction of court that tries the proceedings. A writ court, if arrives at the conclusion that the order passed by the subordinate court or tribunal lack jurisdiction, then deviate from the principles to avail alternative remedy, but it is always within the discretion of the court and the court even on arriving at the conclusion that the order is without jurisdiction and is also in breach of fundamental right may insist upon a party to avail alternative remedy, if that is efficacious. The eventualities given to deviate from the principle under discussion does not put any obligatory duty to invoke writ jurisdiction, but a discretion only." 8
In view of whatever stated above, we do not find any ground to interfere with the order impugned dismissing the writ petition on the count of availability of alternative remedy.
The case of the petitioner would have been on different pedestal if it would have been urged that the remedy available under Section 35 of the Act of 2005 is not at all available. It is also pertinent to note here that once the learned Single Bench has refused to exercise its discretionary jurisdiction on the count of availability of alternative remedy, it shall not be appropriate for the Appellate Court to interfere with such an order. The appeal, as such, is having no force. Hence, dismissed.
The appellant-petitioner, however, shall be at liberty to avail the remedy given under Section 35 of the Act of 2005.
(DEEPAK MAHESHWARI), J. (GOVIND MATHUR), J. /Mohan/ (15)