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2011 Supreme(All) 853
ALLAHABAD HIGH COURT
S.P.Mehrotra, Rajesh Chandra, JJ.
Saifi Gramodyog Sewa Niketan Soron Gate, Kasganj, Etah through its Secretary -Appellant
Versus
Union of India and others -Respondent
Civil Misc. Writ Petition No. 17176 of 2011
Decided On : 24-03-2011
Counsel for the Petitioner:S.A.N. Shah., Counsel for the Respondents: A.S.G.I., Rajiv Sharma, C.S.C..
The main legal point established in the judgment is that when an alternative remedy is available, such as the right to appeal as provided under the relevant rules, the writ jurisdiction under Article 226 of the Constitution of India should not be exercised.
Headnote:
Recovery Notice - Khadi Registration Certificate - The petitioner sought to quash a recovery notice for the refund of a substantial amount issued by the Khadi and Village Industries Commission (K.V.I.C.) following the cancellation of the petitioner's Khadi Registration Certificate. The court found that the petitioner had an alternative remedy of filing an appeal to the Chairman, K.V.I.C., as provided under Rule 18.0 of the Khadi Certification Rules. As the appeal against the cancellation of the certificate was still pending, the court dismissed the writ petition on the ground of the availability of an alternative remedy.
Fact of the Case:
The petitioner was issued a Khadi Registration Certificate, which was later cancelled, leading to the issuance of a recovery notice for a substantial amount. The petitioner filed a writ petition seeking to quash the recovery notice.
Finding of the Court:
The court found that the petitioner had an alternative remedy of filing an appeal to the Chairman, K.V.I.C., as provided under Rule 18.0 of the Khadi Certification Rules. As the appeal against the cancellation of the certificate was still pending, the court dismissed the writ petition on the ground of the availability of an alternative remedy.
Issues: The main issue was whether the petitioner had exhausted the alternative remedy of filing an appeal before seeking relief through a writ petition.
Ratio Decidendi: The court relied on Rule 18.0 of the Khadi Certification Rules, which provided for an alternative remedy of filing an appeal to the Chairman, K.V.I.C., in cases of recovery and cancellation of certificates. The court emphasized that as the appeal against the cancellation of the certificate was still pending, the writ jurisdiction under Article 226 of the Constitution of India should not be exercised.
Final Decision: The writ petition was dismissed on the ground of the availability of an alternative remedy of filing an appeal, as provided under Rule 18.0 of the Khadi Certification Rules.
The petitioner has filed the present writ petition making the following prayers :
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned Recovery Notice dated 8.2.2011 for total Rs. 18.12 lacs issued by respondent No. 7 Director Divisional Office, Khadi and Village Industries Commissioner (Ministry of Micro Small and Medium Enterprises, Government of India, Tvfear Old Chungi Garh Road, Meerut (Annexure No. 1 to the writ petition).
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents not to recover the amount as per impugned recovery notice dated 8.2.2011 from the petitioner during the pendency of the writ petition in the Hon'ble High Court.
(iii) Any other writ, order or direction which the Hon'ble High Court may deem fit and proper in the facts and circumstances of the case in the interest of justice.
(iv) Award costs of the writ petition to the petitioner."
2. It appears that the petitioner was granted Khadi Registration Certificate under the Khadi Certification Rules framed pursuant to Regulation 24 of the Khadi and Village Industries Commission Regulations, 1958.
3. The certificate granted to the petitioner, was cancelled whereupon, the petitioner filed a writ petition being Civil Misc. Writ Petition 63629 of 2005.
4. By the order dated 5.9.2006, the said writ petition was dismissed by this Court, inter alia, observing that "the petitioner may, if he is. so advised, file appeal against the impugned order".
5. The petitioner thereafter, filed an appeal as contemplated under Rule 18.0 of the aforesaid Khadi Certification Rules. The said appeal is stated to be still pending. In the meantime, Notice dated 8.2.2011 (Annexure No. 1 to the writ petition) has been issued to the petitioner, inter alia, requiring the petitioner to refund the amount of Rs. 18.12 lacs to the Khadi and Village Industries Commission (in short "K.V.I.C.") in view of the cancellation of the certificate granted to the petitioner.
6. We have heard Sri S.A.N. Shah, learned Counsel for the petitioner, Sri Rajiv Sharma, learned Counsel for the respondent Nos. 2 to 5 and 7 to 10, and the learned Standing Counsel appearing for the respondent No. 6.
7. Sri Rajiv Sharma, learned Counsel for the respondents Nos. 2 to 5 and 7 to 10 has raised Preliminary Objection that in view of the provisions contained in Rule 18.0 of the aforesaid Khadi Certification Rules, the petitioner has an alternative remedy of filing an appeal against the said notice 8.2.2011 impugned in the present writ petition.
Sri Rajiv Sharma further pointed out that the appeal filed earlier by the petitioner against the cancellation of certificate is also pending.
8. Sri S.A.N. Shah, learned Counsel for the petitioner has not disputed the fact regarding pendency of the appeal before the Appellate Authority in regard to cancellation of the certificate granted to the petitioner.
9. We have considered the Preliminary Objection raised by Sri Rajiv Sharma, learned Counsel for the respondent Nos. 2 to 5 and 7 to 10, and we are inclined to accept the same.
Rule 18.0 of the aforesaid Khadi Certification Rules is as under :
"Appeals
The Central Certification Commission shall not entertain the appeals from the institution on the decisions taken by the Committee in respect of recoveries as a result of audit and cancellation of certificate etc.. Such appeals should be preferred to the Chairman, K.V.I.C., which is the final Appellate Authority. Appeals, which are made after three years of the issue of orders/decisions, would not be entertained."
10. It will, thus, be noticed that the petitioner has an alternative remedy of preferring an appeal to the Chairman, K.V.I.C. in respect of the recovery sought to be made from the petitioner as a result of cancellation of certificate granted to the petitioner.
11. Moreover, the appeal filed by the petitioner against the cancellation of certificate granted to the petitioner is sti
