Manish Srivastava vs State Of Uttarakhand & Others

Ramesh Ranganathan, CJ

This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (M/S) No.1252 of 2019 dated 29.07.2019 relegating the appellant-writ petitioner to approach the Commissioner (Excise) by filing an appeal under Section 11 of the U.P. Excise Act, 1910 within one week from the date of the order; and the Commissioner (Excise) was directed to decide the appeal as early as possible, but not later than four weeks from the date of presentation of a certified copy of the order.

While Mr. Aditya Singh, learned counsel for the appellant-writ petitioner, would place reliance on an order passed by this Court, in Writ Petition (M/S) No.563 of 2019, to contend that the learned Single Judge had held therein that the remedy of an appeal was not available, since such a remedy was available only with regards imposition of penalty or other dues, a bare reading of Section 11(1) of the Act would show that an appeal would lie against all proceedings under the Act, and is not confined only to orders whereby tax, fees, penalty or other dues are imposed. To that extent, we find no error in the order under appeal, whereby the appellant-writ petitioner was relegated to avail the appellate remedy under Section 11 of the Act.

Mr. Aditya Singh, learned counsel for the appellant-writ petitioner, would then place reliance on the judgment of the Supreme Court, in ABL International Ltd. & another vs. Export Credit Guarantee Corporation of India Ltd. & others: (2004) 3 SCC 553, to contend that, even if an appeal lies, this Court can nonetheless entertain the Writ Petition.

The existence of an alternative remedy is not a bar for this Court to exercise its writ jurisdiction under Article 226 of the Constitution. The power of the judicial review, conferred upon the High Court under Article 226 of the Constitution of India, is a part of the basic structure of the Constitution. (L. Chandra Kumar vs. Union of India and others: AIR 1997 SC 1125). Such a power cannot, therefore, be negated or circumscribed even by an amendment to the Constitution, let alone by Legislation- plenary or subordinate. Mere existence of an alternative statutory remedy would, therefore, not bar exercise of jurisdiction under Article 226 of the Constitution of India. The question whether or not the Writ Petition should be entertained, despite existence of an alternate remedy of appeal, or whether the appellant-writ petitioner should be relegated to avail the appellate remedy, is in the discretion of the Court and, since the learned Single Judge had exercised his discretion to relegate the appellant-writ petitioner to avail the appellate remedy, a Division Bench of the High Court would not, in an intra-court appeal, ordinarily, exercise its jurisdiction to interfere.

While we would, ordinarily, have dismissed the Special Appeal, Mr. Aditya Singh, learned counsel for the appellant-writ petitioner, would submit that the dispute in this Writ Petition relates to location of a liquor shop near a factory, which is prohibited by law; the subject unit was re-located in close proximity to a factory on the order of the District Magistrate, on approval being accorded thereto by the Commissioner (Excise); and since the decision to re-locate the shop by the District Magistrate is only on the approval of the Commissioner (Excise), an appeal under Section 11(1) of the Act to the Commissioner (Excise) would not be an efficacious remedy, since the Commissioner (Excise) has already decided the issue; and no useful purpose would be served in the appellant-writ petitioner availing the appellate remedy before him.

When we asked Mr. C.S. Rawat, learned Addl. C.S.C. appearing for the State, whether re-location of the shop by the District Magistrate is only with the prior approval of the Commissioner (Excise), learned Addl. C.S.C. would fairly state that re-location of a shop is only with the prior approval of the Commissioner (Excise). If that be so, relegating the appellant-writ petitioner to the remedy of an appeal under Section 11(1) of the Act, would be an empty ritual and a futile exercise since the Commissioner (Excise) has already decided the issue and has, in fact, accorded approval for re-location of the subject shop.

In these circumstance, and as the appellate remedy is neither effective nor efficacious, we set-aside the order under appeal and restore the Writ Petition to file. The learned Single Judge shall examine the matter afresh on its merits, and in accordance with law.

The Special Appeal is, accordingly, disposed of. No costs.

Let a certified copy of this order be furnished, to the learned counsel for the parties by 28.08.2019, on payment of the prescribed charges.