IMPORTANT POINT
The High Court has discretion to entertain writ petitions despite the availability of alternative remedies, particularly in cases involving fundamental rights or violations of natural justice, but must consider the petitioner's engagement with the inquiry process.

JUDGMENT :

Subhash Vidyarthi J.

Order on I.A. No. 4 of 2023 and I.A. No. 5 of 2023 I.A. No. 4 of 2023 has been filed seeking condonation of delay in filing application for recall of the order dated 26.09.2022. I.A. No. 5 of 2023 has been filed seeking recall of the order dated 26.09.2022 whereby the writ petition was dismissed due to non-appearance of the learned counsel for the petitioner. The reason assigned in the affidavits filed in support of the applications is that the clerk of the petitioner’s Counsel mistakenly failed to mark the case in the cause list of 26.09.2022 and for this reason, the petitioner and his Counsel were not aware about the listing of the case on that date. The cause shown for recall of the order and for non appearance of the learned counsel for the petitioner is sufficient. The applications are allowed. The delay in filing the application for recall of order dated 26.09.2022 is condoned and order dated 26.09.2022 is recalled. The writ petition is restored to its original number.

Order on Writ Petition

1. Heard Sri Awadhesh Kumar Singh, the learned counsel for the petitioner and Sri Rajeev Ranjan Chaudhary, the learned counsel for the respondents.

2. By means of the instant petition filed under Section 226 of the Constitution of India, the petitioner has challenged validity of an order dated 12.10.2017 passed by the Sub-Divisional Magistrate, Tulsipur, District Balrampur whereby the fair price shop license of the petitioner was cancelled.

3. A counter affidavit was filed in this case on 31.02.2018 after serving a copy thereof on the learned counsel for the petitioner on 30.03.2018 but no rejoinder affidavit has been filed till date in spite of time having been sought and granted repetitively on 17.08.2018, 18.05.2018 and 24.08.2022, but the petitioner did not file a rejoinder affidavit. Therefore, the averments made in the counter affidavit remained uncontroverted.

4. The learned Standing Counsel has raised a preliminary objection that the petitioner has a statutory remedy of filing an appeal under Section 13(3) of The Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016.

5. The learned Standing Counsel has relied upon a decision of the Hon'ble Supreme Court in N. P. Ponnuswami v. Returning Officer, Namakkalconstituency & Ors: 1952 SCR 218, wherein the Hon'ble Supreme Court has held that “It is now well-recognized that where a right or liability is created by a statute which gives a special remedy for en- forcing it, the remedy provided by that statute only must be availed of.”

6. Replying to the aforesaid preliminary objection, the learned counsel for the petitioner has relied upon a decision of this Court in M/s Mahatma Gandhi Upbhokta Samiti v. State of Uttar Pradesh & Ors: 2001 19 LCD 513 and Lokman Singh v. Deputy General Manager, Western Zone, UPSRTC, Meerut & Ors: 2006 (8) ADJ 646.

7. In M/s. Mahatma Gandhi Upbhokta Samiti, this Court had entertained the writ petition on the ground that if there is a violation of principles of natural justice, alternative remedy shall not stand as a bar.

8. In Lokman Singh (supra), this Court had declined to relegate the petitioner to alternative remedy for the reason that the writ petition had been entertained in the year 1997 and counter and rejoinder affidavit have been exchanged and, therefore, it would not be proper to relegate the petitioner to an alternative remedy after the writ petition having remained pending for almost 10 years.

In Whirlpool Corpn. v. Registrar of Trade Marks: (1998) 8 SCC 1, a two-Judge Bench of the Hon’ble Supreme Court had held that: -

“14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights