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3. On several grounds, the learned advocate for the parties have submitted refuting the case of the otherside. Firstly, it is the contentions of the learned advocate representing the opponent that this court may abstain from exercising the writ jurisdiction under Article 226 of the Constitution of India especially when other efficacious remedy is available and yet not resorted to by the petitioner. According to the learned advocate for the opponent, when the demand was made, old Gujarat Panchayat Act, 1961 was in force and as per section 186(6) of that old Act, the appeal was required to be preferred to the District Panchayat against the claim advanced by the opponent-Panchayat. Subsequently, the Gujarat Panchayat Act, 1993 came into force and the said section finds place in the new Act as section 200(6). As per that section also which is couched in the same words, the persons aggrieved by the assessment, levy, or imposition of the tax or fee has to file the appeal to the District Panchayat within the prescribed period. When there is such provision about the appeal, and the appeal is not preferred by the petitioner against the demand made, it would not be just and proper on the part of this court to exercise the powers under Article 226 of the Constitution. In support of such contentions, the learned advocate for the opponent has relied upon the decisions of the Supreme Court in the cases of C. A. ABRAHAM V/s. INCOME-TAX OFFICER, KOTTAYAM AND ANOTHER, AIR 1961 S.C. 609 and COMMISSIONER OF INCOME TAX, LUCKNOW V/s. U.P. FOREST CORPORATION, (1998) 3 S.C.C. 530.

4. In reply to such contention, the learned advocate representing the petitioner submits that the court is not debarred from entertaining the application and disposing the same of in accordance with law. Even in the case where efficacious remedy is not resorted to the court is vested with the discretion to entertain and decide the application and in the facts and circumstances of the case the discretion has to be exercised. If the court finds that it would be futile to direct the petitioner to resort to the efficacious remedy available for the same may fall short for doing complete Justice and at last the petitioner will have to come again to this court for the order he craves for the present and this Court will have to pass the order at that time, it would amount to unnecessarily putting the petitioner to several difficulties or hardships as well as prolonging the finality in the matter which is condemned by law. Further after a long time, it would not be just and proper to direct the party to first file the appeal, an then if required to again prefer the petition in this Court. Looking to the issue involved the petitioner will have to come again to this Court for appropriate order. It would be better if appropriate order is passed at this stage and the dispute is set at rest finally rather than driving the petitioner craving for speedy Justice from pillar to post.

5. Whether this court can entertain the petition, in case where efficacious remedy available in law to the petitioner is not resorted to, is the question that arises for consideration. Such question arose before this court in the case of DAHYABHAI DEVJIBHAI VASAVA V/s. DY.DIST.DEV. OFFICER (Rev.) BROACH, 20(2) : 1979 (2) GLR 678, wherein it is held that even if the remedy is not exhausted, still however when the petition is already admitted, at the time of final hearing after about 3 1/2 years it will not be just and proper to dismiss the petition on the ground that alternative remedy is not exhausted. When the petition is admitted despite the fact that efficacious remedy available in law is not exhausted, it would mean that the petitioner was led to believe that this court was not insistent on the normal rule of exhausting alternative remedy before approaching this Court, and it would be too late now to reject the application, after more than 3 1/2 years have rolled by. When a similar question arose before this court, in another case of BHAVABHAI BHADABHAI MARU V/s. DHANDHUKA NAGAR PANCHAYAT, 32 (2) : 1991 (2) GLR 1339, it is made clear that the existence of alternative remedy is the factor to be taken into consideration by the Court while entertaining the petition under Article 226 of the Constitution of India. Even if the existence of alternative remedy available in law, it would not be a bar to exercise extraordinary jurisdiction under Article 226 of the Constitution of India. Remedies which are burden-some and cause undue delay and hardship cannot be said to be suitable or adequate. If the petitioner is relegated back to an alternative remedy which is likely to consume time and which would deprive the petitioner of his very means of sustenance, it would be just and proper to exercise jurisdiction vested under Article 226 of the Constitution of India rather than directing the petitioner to first resort to efficacious remedy likely to consume several years for final redressal of grievances. Again likewise question arose before this court in the case of K. S. JOY V/s. INDIAN INSTITUTE OF MANAGEMENT & ORS., 35 (1) : 1994 (1) GLR 57, wherein it is made clear that once the petition is entertained and heard by the High Court on merits, it would not be proper to relegate the party to an alternative remedy. Even if in law the efficacious remedy is available as an alternative adequate remedy, the same does not oust the jurisdiction of the High Court to entertain the petition and decide the same, for relegating the petitioner to alternative remedy after about 4 1/2 years, would not be an adequate efficacious remedy. For holding so this court in that case also relied upon the decisions of the Supreme Court rendered in the case of ARIDAY NARAIN V/s. I. T. OFFICER, BOMBAY, AIR 1971 S.C. 33 AND RAM & SHYAM COMPANY V/s. STATE OF HARYANA & ORS., AIR 1985 S.C. 1147.

6. Perusal of all these decisions making in the law on the point clear reveals that whenever other efficacious remedy is available in law, the High Court should not entertain the writ petition; but if the petition is admitted and the petitioner is led to believe that the Court does not or will not insist on normal rule of exhausting alternative remedy, or the petition is heard on merits, it would not be just and proper to direct the petitioner to resort to the efficacious remedy, and come again to the court, if it is necessary after the order in the proceeding (the alternative remedy) is passed because exhaustion of the alternative remedy as made clear by the Supreme Court in the case of RAM & SHYAM COMPANY V/s. STATE OF HARYANA & ORS. (Supra) is a rule of convenience and discretion rather than rule of law. At any rate it does not oust the jurisdiction of the Court. Whenever at the admission stage, the court find that the alternative remedy is available, the petition at the threshold should be dismissed, directing the petitioner to resort to the other efficacious remedy available in law, but if the petition is admitted and the rule is issued, and, thereafter, considerable time is passed, and the petition is heard on merits, the court should not dismiss the petition only on the ground that other efficacious remedy when available ought to have been resorted to. I may also add that in the cases where appeal against the order challenged though permissible in law, as an efficacious remedy, the decision in appeal, however, is not going to set every question or dispute at rest and keep the same burning, meaning thereby doing complete Justice is not possible, it would not be just and proper to direct the petitioner to resort to other alternative remedy available in the law. In the case of C. A. Abraham v/s. Income-Tax Officer, Kottayam and Another, (Supra), the Supreme Court has also observed that when alternative remedy is available jurisdiction under Article 226 of the Constitution of India cannot be invoked, but in that case the petition was entertained and leave was already granted, observing that it would not be justified at that stage to dismiss the appeal in limine. In that case of Commissioner of Income Tax, Lucknow v/s. U.P. Forest Corporation, (Supra), the Supreme Court though observed that such writ petitions, ought not to have been entertained by the High Court as adequate alternative remedy was available, it did not think it proper to dismiss the petition on the ground that other adequate alternative remedy was available. Thus, the decisions cited by the learned advocate representing the opponent also lay down that ordinarily rule is not to entertain the petition when adequate and efficacious alternative remedy is available but when the petition is already admitted and years have passed thereafter, equity and prudence dictate not to direct the petitioner to resort to the alternative remedy available in law, and dismiss the petition.