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IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH, MADHURESH PRASAD, JJ.
Dharam Dew Choudhary S/o Late Braham Dev Choudhary – Petitioner
Versus
The State of Bihar – Respondent
Civil Writ Jurisdiction Case No. 11176 of 2021
Decided On : 31-03-2022
Constitution of India – Articles 226 and 227 – Writ Jurisdiction – Alternative remedy – Existence of an alternative remedy is no bar for a High Court to entertain a writ petition under Article 226 of Constitution of India – Save in exceptional cases, High Court, exercising discretionary power of judicial review under Article 226 of Constitution of India will not interfere until all normal remedies available to a petitioner have been exhausted – Grant or refusal of a writ is at discretion of Court and Court, exercising such discretion, needs to take into consideration various circumstances including availability of equally efficacious alternative statutory remedy – When an action is found to be ex-facie illegal, beyond jurisdiction, or in violation of principles of natural justice, in appropriate cases a writ petition under Article 226 of Constitution of India can be maintained – However, normally such writ jurisdiction is to be exercised in such cases only if exceptional circumstances are made out – High Court cannot allow its constitutional jurisdiction to be used for deciding disputes for which remedies under general law, civil or criminal are available – Principle that High Court may entertain a writ petition notwithstanding availability of an alternative remedy, where there is a violation of principles of natural justice, cannot be stretched to such extent as to contend that in all such cases where there is violation of principles of natural justice, High Court is under obligation to entertain a writ petition despite there being a statutory remedy against impugned action. (Paras 10, 12, 20 and 21)
Bihar Targeted Public Distribution System (Control) Order, 2016 – Clauses 27 and 32 – Constitution of India – Article 226 – Cancellation of PDS shop licence – Main ground which has been taken to assail impugned order is that report of Block Supply Officer which was the basis for issuance of show-cause notice to petitioner, was not supplied to him at the time of issuance of show-cause notice – Petitioner has a statutory remedy of revision under provisions of Control Order, 2016, which he has not invoked – Ordinarily, High Court under writ jurisdiction tests the correctness of decision making process, exercising power of judicial review of administrative or quasi judicial decision and not the decision itself – High Court exercising such power is not required to reappreciate evidence – While exercising power of judicial review, High Court ordinarily does not substitute its own decision in place of the decision of an administrative or quasi judicial authority – Whereas these limitations, though self imposed, apply in a proceeding under Article 226 of Constitution, statutory authorities having power of appeal or revision have statutory obligation to decide all such issues as raised also upon, reappreciating evidence and can substitute its decision in appropriate cases – There exists no exceptional circumstance for High Court to entertain this writ application despite availability of alternative statutory remedy to petitioner to assail impugned orders – Writ application dismissed – Petitioner is granted liberty to avail remedy of revision by making application before Revisional Authority. (Paras 8, 14, 16, 17, 19, 23 and 24)
JUDGMENT :
CHAKRADHARI SHARAN SINGH, J.
1. The petitioner held a license to run a P.D.S. shop under Bihar Targetted Public Distribution System (Control) Order, 2016 (‘Control Order 2016’ for short) for the Gram Panchayat Tungi in the district of Nalanda, which came to be cancelled by an order of the Licensing Authority dated 28.05.2019 on the allegation of certain irregularities committed by him. The petitioner preferred an appeal against the said order of the Licensing Authority before the Appellate Authority, i.e. the District Magistrate, Nalanda, giving rise to Supply Case No. 19 of 2019, which has been dismissed by an order dated 04.02.2021.
2. The petitioner has assailed in the present writ application filed under Article 226 of the Constitution of India, the said order of the Licensing Authority dated 28.05.2019 and the Appellate Authority dated 04.02.2021.
3. The Control Order, 2016, has been issued in exercise of powers conferred under Section 3 and Section 5 of the Essential Commodities Act and it is not disputed that it is statutory in nature. Rule 32(vii) of the Control Order, 2016, which confers revisional jurisdiction upon the Principal Secretary/Secretary of the Department. Rule 32(vii) reads thus:
“(vii) The Principal Secretary/Secretary of the department may call for the records related to the order passed under the provisions of this Order by the Divisional Commissioner or the District Officer or the licensing authority or the Sub Divisional Officer suo-motu or upon a representation by someone and if he is satisfied that the Divisional Commissioner or the District Officer or the licensing authority or the Sub Divisional Officer:
(a) has exercised such powers which are not entrusted to him.
(b) has exercised his powers illegally without considering the facts of the case.
(c) has failed in use of his powers, he may pass an order which he thinks fit.”
4. The petitioner has not availed the aforesaid statutory remedy of revision before approaching this Court invoking writ jurisdiction under Article 226 of the Constitution of India to assail the impugned orders. In response to a query made by this Court as to why the petitioner did not avail the statutory remedy of revision under the Control Order, 2016, before approaching this Court, Ms. Vagisha Pragya Vacaknavi, learned counsel appearing on behalf of the petitioner, has argued that since the challenge to the impugned order is on the grounds of violation of principles of natural justice, the petitioner is not required to invoke the revisional authority against the impugned orders. She has vehemently argued that if there is violation of principles of natural justice by an authority exercising quasi-judicial functions, the affected person is not required to invoke the statutory provision of appeal or revision. She has contended that since there has been violation of principles of natural justice, this Court instead of requiring the petitioner to avail the remedy of revision should interfere with the impugned order.
5. We will discuss the factual background in which the aforesaid submission of violation of principles of natural justice has been made after briefly discussing the facts of the case.
6. The petitioner was put to a show-cause notice through a letter dated 23.08.2018 based on an enquiry conducted by the Block Supply Officer, Biharsharif, on 16.06.2018. The said communication referred to five irregularities of the following nature:
(i) Price display board was not as per the fixed measurement.
(ii) Records relating to the distribution of articles were not maintained.
(iii) Cash memos were not produced.
(iv) The weight and measurement equipment was not verified up to date.
(v) The beneficiaries had complained about the non-delivery of the food grains.
7. A copy of the said report was said to be enclosed with the said notice dated 23.08.2019. The petitioner was asked to submit his explanation by 04.09.2018 stating as to why the license be not cancelled. The petitioner submitted
Point of law : When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy befor....
The discretionary nature of the writ jurisdiction under Article 226 and the exceptions to the rule of alternate remedy.
Writ petitions against quasi-judicial authorities are not maintainable if statutory remedies are available unless exceptional circumstances like natural justice violations are proven.
Judicial orders from civil courts cannot be challenged through writs under Article 226; alternative remedies must be exhausted first.
The existence of an alternative remedy does not preclude the maintainability of a writ petition; however, the court retains discretion to entertain such petitions based on jurisdictional issues or vi....
Writ jurisdiction under Article 226 cannot be invoked where effective alternative remedies exist, especially in consumer disputes; exceptions are limited and clearly defined.
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