Point of Law: Exhaustion of statutory remedy - If authority in whom discretion is vested under statute, does not act independently and passes an order under instructions and orders of another authority, Court would intervene in matter, quash order and issue a mandamus to that authority to exercise its own discretion

ORDER :

1. This petition under Article 226 of the Constitution of India is filed for the purpose of seeking the following reliefs : “

9(A) Your Lordships be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 03.07.2020 and 01.10.2019 at AnnexureA and AnnexureB above (refer page 23 and 28).

(B) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to stay the implementation and execution of the orders impugned.

(C ) Exparte ad interim relief in terms of prayer (B) may be granted.

(D) Such other and further reliefs as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted.”

2. Mr. Viral K. Shah, learned advocate for the petitioner has submitted that there is a clear error committed by the authorities below in passing the impugned orders. It has been submitted that at one breath the Collector, Surat was pleased to confirm the order dated 01.01.2019 whereas, on the other count, the matter came to be remanded to the Mamlatdar, Kamrej with respect to the sale mutation entry no. 10661 for taking a fresh decision and as such, that being the position, has straightway rushed down to this Court by way of the present petition under Article 226 of the Constitution of India.

3. Based upon the aforesaid brief submission, it appears to this Court that while passing the impugned orders, the authorities below have applied their mid on the complicated questions of fact which are narrated and after passing the order has clearly opined that if the petitioner is aggrieved by the order in question, there is a specific remedy of appeal available to the petitioner which can be availed of within a period of sixty days and as such, during the course of hearing, it was informed to the learned advocate for the petitioner as to whether he is inclined to avail such remedy or not, at that juncture, the learned advocate for the petitioner has submitted that since the facts are clear, the order can be examined by the High Court as well.

4. To this submission, this Court is of the clear opinion that the finding of facts are not to be analyzed or reexamined by the High Court in exercise of extra ordinary jurisdiction unless, there is any perversity or apparent illegality. Apart from that, when the statute has prescribed a specific remedy, first that remedy will have to be exhausted and this is not the case extra ordinary in nature, in which, the petitioner can be allowed to bypass such statutory remedy which is undisputedly provided and available to the petitioner. It is the settled position of law that whenever such mechanism is provided under the statute, the High Court should not usher up the discretion of the statutory authority and pass any order which is otherwise to be passed by the competent authority and as such, keeping in view such settled position of law, undisputedly, the statutory remedy is available to the petitioner, this Court is not inclined to exercise extra ordinary jurisdiction and as such, on this count alone, the present petition is disposed of. Since the petition is not entertained only on account of statutory remedy being available to the petitioner, this Court has not expressed anything on merit on any of the contentions which are mentioned in the memo of the petition, leaving it open for the petitioner to raise all the permissible contentions before the authority where the statute has provided the remedy to the petitioner,

4.1. This issue about exhaustion of statutory remedy is no doubt self imposed by and large but the same is to be respected to and that proposition of law is laid down by the following decisions of the Apex Court which the Court has kept in mind. The relevant extract contained the said decisions are reproduced hereunder :

4.2. In the case of D.N. Jeevaraj v. Chief Secretary, Government of Karnataka & Ors., reported in (2016) 2