The existence of an alternate statutory remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. However, a writ petition can be entertained in exceptional circumstances.

ORDER :

1. At the outset, learned counsel for respondents-State submits that the order under challenge is passed by the Commissioner Durg Division, District Durg, C.G. under Section 44(2) of the Chhattisgarh Land Revenue Code, 1959 in second appeal and petitioner is having efficacious alternate statutory remedy of revision under Section 50(iii) of the Land Revenue Code.

2. When the question is posed to learned counsel for petitioner with respect to alternate remedy of revision against the order impugned, he fairly submitted that though the remedy of revision is available under the Land Revenue Code, however, writ petition is filed on the ground that the civil suit was filed and against the judgment and decree, first appeal was filed and now second appeal is pending before the High Court on the same facts and grounds. The objection was raised by the petitioner before the authority below, however, has not considered and therefore this writ petition is filed.

3. Entertaining the writ petition under Article 226 of the Constitution of India in view of the efficacious alternate remedy is only in exceptional circumstances as observed by Hon’ble Supreme Court in the matter of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others [(1998) 8 SCC 1], wherein Hon’ble Supreme Court has carved out four exceptions under which writ petition can be maintainable even if alternate remedy of revision or appeal is available. The said exceptions carved out are extracted below for ready reference :

“(i) where the writ petition seeks enforcement of any of the fundamental rights;

(ii) where there is violation of principles of natural justice;

(iii) where the order or the proceedings are wholly without jurisdiction; or

(iv) where the vires of an Act is challenged.”

4. Recently, Hon’ble Supreme Court in the case of Assistant Commissioner of Sales Tax & others vs. Commercial Steel Limited [(2021) SCC OnLine SC 884, following the decision in the case of Whirlpool Corporation (supra) has observed thus :

“11. The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is:

(i) a breach of fundamental rights;

(ii) a violation of the principles of natural justice;

(iii) an excess of jurisdiction; or

(iv) a challenge to the vires of the statues or delegated legislation.”

5. No exceptional facts or circumstances as observed by Hon’ble Supreme Court in the aforesaid decisions for entertaining the writ petition bypassing the alternate efficacious statutory remedy available is made out and therefore, I am not inclined to entertain this writ petition, accordingly the writ petition is dismissed. However, petitioner will be at liberty to avail the alternate remedy available to him under the law.

6. At this stage, learned counsel for petitioner submits that the certified copy of the documents placed on record along with writ petition be directed to return back to him.

7. In view of submission of counsel for petitioner, Registry is directed to return back certified copy of the documents placed along with writ petition after retaining photocopy of the same in record.