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1996 DIGILAW 346 (GUJ)

Jalaram Corporation v. STATE

1996-07-11

S.K.KESHOTE

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S. K. KESHOTE, J. ( 1 ) HEARD the learned counsel for the parties. Respondent No. 2 filed reply to the special civil application and raised objection that this writ petition is not maintainable as only show cause notice has been given to the petitioner and no final order has been passed. The counsel the respondents contended that if the petitioner has any grievance he may ventilate the same in the reply to the show cause notice and the concerned authority will consider the same. ( 2 ) I have gone through the document annexure-G by taking translation thereof from the counsel for the respondents. It is a show cause notice which has been given to the petitioner by respondent No. 4 under section 84-C of the Bombay Tenancy and agricultural Lands Act, 1948 alleging therein that there is violation of the povisions of section 63 of the said Act in making sale of the land in question in favour of the petitioner by its holder. The counsel for the petitioner relied upon the decision of this Court in the case of M/s. Jailaxmi Estate and Anr. vs. State of Gujarat, reported in AIR 1994 (Guj.) 38 contended that against the show cause notice petition under Article 226 of the constitution of India is maintainable. It has further been contended that where the show cause notice is lacking in authority, it can be challenged straight away by the petitioner in a writ petition. I do not find any substance in any of the contentions raised by the learned counsel for the petitioner. ( 3 ) THE petitioner has been called upon to show cause by the notice impugned in the writ petition. He can raise all the objections including the objection that the authority who issued the show cause notice is not competent to issue the same. Against the show cause notice the petitioner should have filed his reply. Moreover, it is not in dispute that any order passed by respondent No. 4 after considering the objections is appealable. If that is the position of law, the petitioner should be insisted by this Court first to submit his reply to the concerned authority and to await decision thereon. Thereafter, in case the decision goes against him, sufficient remedy is provided by way of appeal. After exhausting such remedy it is always open to the petitioner to approach this Court. If that is the position of law, the petitioner should be insisted by this Court first to submit his reply to the concerned authority and to await decision thereon. Thereafter, in case the decision goes against him, sufficient remedy is provided by way of appeal. After exhausting such remedy it is always open to the petitioner to approach this Court. The petitioner cannot be permitted to circumvent the statutory remedies in such cases and approach this Court by way of writ petition. In case the special civil application is entertained against the show cause notice then the provisions of appeal against the order of the competent authority will be rendered nugatory. Even if there is no remedy of appeal provided, then it is always better and advisable in such cases first to invite decision in the matter from the authority concerned, so that in case the petitioner is required to approach this Cause against the final order passed, this court may be in a better position to appreciate the controversy as well as to have before the court the view of the said authority. ( 4 ) THOUGH the petitioner has referred to the decision of this Court in the case of jailaxmi Estate (supra), reference may be made to the latest decision of the Supreme court in the case of Executive Engineer, B. S. H. B. vs. Ramesh Kumar Singh, reported in 1996 (1) SCC 327 . The Supreme Court while considering the maintainability of wirt petition against a show Cause notice before High Court under Article 226 of the constitution held as under : "we are concerned in this case, with the entertainment of the writ petition against a show-cause notice issued by a competent statutory authority. It should 447 be borne in mind that there is no attack against the vires of the statutory provisions governing the matter. No question of infringement of any fundamental right guaranteed by the Constitution is alleged or proved. It cannot be said that Exh. P-4 notice is ex facie a nullity or totally without jurisdiction in the traditional sense of that expression-that is to say, that even the commencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthorised. It cannot be said that Exh. P-4 notice is ex facie a nullity or totally without jurisdiction in the traditional sense of that expression-that is to say, that even the commencement or initiation of the proceedings, on the face of it and without anything more, is totally unauthorised. In such a case, for entertaining a writ petition under Article 226 of the Constitution of India against a show-cause notice, at that stage, it should be shown that the authority has no power or jurisdiction, to enter upon the enquiry in question. In all other cases, it is only appropriate that the party should avail of the alternate remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also, then. In the event of an adverse decision, it will certainly be open to him to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India. " in view of the decision of the Supreme Court and even otherwise also this writ petition is not maintainable. ( 5 ) YET there is another aspect to be taken into consideration. No prejudice is going to be caused to the petitioner merely by serving on him the show cause notice. No adverse order has been passed and the petitioner has opportunity to make out his case before the authority. All the points raised before this Court can be raised before the concerned authority. Normally when final adjudication in the matter has not been made by the authority concerned, writ petition is not maintainable. ( 6 ) IN the result this writ petition fails and the same is dismissed. Rule discharged. Interim relief granted earlier stands vacated. No order as to costs. .