Dwarika Dhish Ahuja vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—This petition impugns the order dated 1.10.2007 (Annexure P/1 and P/2) on the ground that no reasonable opportunity of hearing was afforded to the petitioner. Shri Awasthy, learned senior counsel appearing for the petitioner submits that if he takes recourse to statutory remedy available under the law, it is not efficacious.

The Chhattisgarh Land Revenue Code, 1959 (hereinafter referred to as ''the Code, 1959") is a self contained. It provides for grant of relief and other remedies. The Code, 1959 further provides for appeal and appellate authorities in Chapter V, section 44. This is a case where in normal course, an appeal is maintainable before the Sub Divisional Officer against the order of the Tahsildar, then to the Collector and then to the Board of Revenue.

Shri Awasthy further submits that alternative remedy available to the petitioner is not efficacious. The contention of learned counsel that the remedy is not efficacious does not merits acceptance as the statutory remedy is provided in the court below as more effective and efficacious remedy then the writ petitions in the High Court wherein cases of all the nature are pending consideration.

On the question of availability of alternative remedy, the Hon''ble Supreme Court in the matter of State of H.P. and others vs. Gujrat Ambuja Cement and another, (2005) 6 SCC 499 observed as under:

We shall first deal with the plea regarding alternative remedy as raised by the appellant State. Except for a period when Article 226 was amended by the Constitution (Forty-second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of alternative remedy, it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should not ensure that he has made out a strong case or that there exists good grounds to invoke the extraordinary jurisdiction.

In G. Verappa Pillai vs. Raman & Raman Ltd., CCE vs. Dunlop India Ltd., Ramendra Kishore Biswas vs. State of Tripura, Shiv Gonda Anna Patil vs. State of Maharashtra, C.A. Abraham vs. I.T.O., Titaghur Paper Mills Co. Ltd. vs. State of Orissa, H.B. Gandhi vs. Gopinath & Sons, Whirlpool Corpn. Vs. Registrar of Trademarks, Tin Plate Co. of India Ltd. vs. State of Bihar, Sheela Devi vs. Jaspal Singh, and Punjab National Bank vs. O.C. Krishnan, this Court had held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedy before resorting to writ jurisdiction.

Further applying the said ratio in the matter of U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and Another, , the Hon''ble Supreme Court observed as under:

In U.P. State Bridge Corpn. Ltd. vs. U.P. Rajya Setu Nigam S. Karmachari Sangh, it was held that when the dispute relates to enforcement of a right or obligation under the statute and specific remedy is, therefore, provided under the statute, the High Court should not deviate from the general view and interfere under Article 226 except when a very strong case is made out for making a departure. The person who insists upon such remedy can avail of the process as provided under the statute. To the same effect or the decisions in Premier Automobiles Ltd. vs. Kamlekar Shantaram Wadke, Rajasthan SRTC vs. Krishna Kant, Chandrakant Tukaram Nikam vs. Municipal Corpn. of Ahemdabad and in Scooter India vs. Vijai E.V. Eldred.

In another latest decision on the concept of maintainability of writ petition vis-a-vis availability of alternative remedy, the Supreme Court in the matter of Secretary, U.P. High School and Intermediate Education, Allahabad and Another Vs. H.K. Lal, , observed as under:

From the records it is borne out that the question as to whether the respondent has a legal right to alter his date of birth recorded in the certificate granted by the Board was pending consideration before the appellate Court. The writ petition filed by the respondent should, therefore, not have been entertained particularly in view of the fact that the appeal there against was pending. Writ jurisdiction is discretionary jurisdiction and should not ordinarily be exercised if there is an alternative remedy.

This Court, in the matter of Chandrika Prasad Sahu & Others vs. State of Chhattisgarh & Others, in W.P. (S) No. 4597 of 2008, vide order dated observed as under:

A common thread running into the dicta laid down by the Hon''ble Supreme Court in the aforementioned cases is that normally the High Court should not interfere if there is an adequate efficacious alternative remedy where hierarch of appeal is provided by the statute, party must exhaust the statutory remedy before resorting to the writ jurisdiction, except when a very strong case is made out for making a departure.

Applying the well-settled principles of law on the issue of availability of alternative remedy to the facts of the case, this petition is dismissed as not maintainable as no strong case has been made out for exercise of extraordinary discretionary jurisdiction in favour of the petitioner. However, liberty is reserved to the petitioner to take recourse to alternative statutory remedy available to them under the provisions of law, if so advised.