Back
2016 Supreme(All) 3221
ALLAHABAD HIGH COURT
Satyendra Singh Chauhan, Anil Kumar, JJ.
Mohanlal @ Mohand Das - Appellant
Versus
State of U.P.Through Principal Secy. Forest Lucknow & Others - Respondent
Misc. Bench No. 3532 of 2005
Decided On : 05-07-2016
For the Petitioner:- Manish Kumar,Dr Ravi K Misra
For the Respondent:- C.S.C.
When a statutory remedy is available, a writ petition under Article 226 of the Constitution of India is not maintainable.
Headnote:
Jurisdiction - U.P.Z.A. & L.R. Act - Section 229-B/209 - 1983 )2 SCC 433, 2000) 10 SCC 12, 2005) 7 SCC 492, 2011) 2 SCC 782 - The court held that when a statutory remedy is available, a writ petition under Article 226 of the Constitution of India is not maintainable. The petitioner was directed to avail the alternative statutory remedy.
Fact of the Case:
The petitioner challenged the rejection of their suit under Section 229-B/209 of U.P.Z.A. & L.R. Act through a writ petition under Article 226 of the Constitution of India.
Finding of the Court:
The court found that the writ petition was not maintainable due to the availability of a statutory remedy for the petitioner.
Issues: The main issue was the maintainability of the writ petition under Article 226 of the Constitution of India when a statutory remedy was available.
Ratio Decidendi: The court relied on various cases to establish that when a statutory remedy is available, a writ petition under Article 226 of the Constitution of India is not maintainable.
Final Decision: The writ petition was dismissed on the ground of maintainability of statutory remedy of appeal, with the petitioner being given the liberty to approach the appropriate court by filing an appeal.
Satyendra Singh Chauhan and Anil Kumar,JJ.
Heard Sri Manish Kumar, learned counsel for petitioner and learned Standing Counsel.
2. By means of the present writ petition, the petitioner has challenged the order dated 29.10.2004 passed by Atirikt Adhikari, Kheri by which the petitioner's suit under Section 229-B/209 of U.P.Z.A. & L.R. Act registered as Regular Suit No. 130 (Uma Shanker and others Vs. Van Vibhag and others) has been rejected.
3. A query has been made to the learned counsel for the petitioner that against the impugned order the petitioner has got statutory remedy of appeal under the statute which governs the field, so the present present writ petition is liable to be dismissed on the said ground.
4. Sri Manish Kumar, learned counsel for petitioner, in rebuttal, submits that the impugned order passed by Atirikt Adhikari, Kheri/respondent No. 4 is illegal and without jurisdiction, so petitioner can challenge the same by way filing present writ petition under Article 226 of the Constitution of India.
5. We have heard learned counsel for parties and perused the record.
6. It is too late in the day to quarrel that if the petitioner has got statutory remedy available to him against the impugned order, which he has challenged under Article 226 of Constitution of India; the statute which governs the field will determine the jurisdiction then in that circumstance the writ petition filed by the petitioner will not be maintainable in view of the law as laid down by Hon'ble the Supreme Court in the case of Titaghur Paper Mills Company Limited and another Vs. State of Orissa and others (1983 )2 SCC 433 wherein it was held as under: -
"Where a right or liability is created by statute which give special remedy for enforcing it, that must be availed as the said statute provides a complete machinery in order to challenge the impugned action taken therein in the statute itself and not under Article 226 of the Constitution of India.
7. In the case of Karnataka Chemical Industries and others Vs. Union of India and others (2000) 10 SCC 12, wherein it was held as under: -
"When there is no challenge to the validity of any statutory provision, we see no reason as to why a writ petition should have been filed by passing the alternative remedy which is provided under the statute. On the short ground we dismiss this appeal, vacate the interim orders, direct the payment of the balance amount of duty along with interest @ 15% per annum with yearly rests. It will be open to the appellant to avail of such statutory remedy as may be available to it. If an appeal is filed within four weeks from today, the Department will take a lenient view in condoning the delay."
8. In the case of Central Coalfilds Limited Vs. State of Jharkhand and others (2005) 7 SCC 492 , wherein it was held as under: -
"If there is statutory alternative remedy available to a person under an statute itself, in that case the writ petition should not be entertained under Article 226 of the Constitution of India and the petitioner is directed to avail the alternative statutory remedy."
9. In the case of Kanaiyalal Lal Chand Sachdev and others Vs. State of Maharashtra and others (2011) 2 SCC 782 , in para Nos. 23 and 24 held as under: -
"Para - 23 - In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the Appellants under Section 17 of the Act. It is well-settled that ordinarily relief under Articles?226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See: Sadhana Lodh v. National Insurance Co. Ltd. and Anr. (2003) 3 SCC 524 ; Surya Dev Rai v. Ram Chander Rai and Ors. (2003) 6 SCC 675 ; State Bank of India v. Allied Chemical Laboratories and Anr. (2006) 9 SCC 252 ."
Para - 24- In City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Ors. (2009) 1 SCC 168 , this Court had observed that:
The Cour
