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2006 DIGILAW 1764 (ALL)

VAISHALI JAIN v. STATE OF UTTAR PRADESH

2006-07-24

AJOY NATH RAY, ASHOK BHUSHAN

body2006
JUDGMENT By the Court.—Heard learned Counsel for the appellant and Sri Anurag Khanna, learned Counsel appearing for respondent Nos. 2 and 3 and learned Standing Counsel. 2. This is an appeal against an order dated 29.6.2006 passed by the learned Single Judge during vacation dismissing the writ petition filed by the writ petitioner against the order dated 17.6.2006 on the ground of alternative remedy of statutory appeal. The writ petition was filed against the order dated 17.6.2006 passed by the Muzaffarnagar Development Authority, Muzaffarnagar directing for demolition. 3. Learned Counsel appearing for the appellant submitted that the writ petition was not liable to be dismissed on the ground of alternative remedy since the appellant’s case is fully covered by the judgement of the Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1 . He submits that the case is covered with one of the exceptions laid down in the said judgment. 4. We have considered the submissions and perused the records. 5. The order dated 17.6.2006 reads that although the appellant was given an opportunity to show cause but he failed to show cause to the said notice. Hence the order is being passed. 6. The Apex Court in the above mentioned judgment has laid down that there are certain well known exceptions where the Court might entertain a writ petition despite availability of the statutory remedy. Exceptions laid down in the said judgment includes where the order is passed in violation of natural justice or the order is without jurisdiction or the statute itself. 7. In the present case, the order reads that notice was given, hence the said order does not come in one of the exceptions laid down in the Whirlpool Corporation’s case (supra). It is not a case where there is any lack of jurisdiction in the development authority in directing the order for demolition. 8. Learned Counsel for the appellant took us to certain reports and annexures saying that there was no violation committed by the appellant and the map was sanctioned. For consideration of the said submission, it requires examination of the factual aspects and other aspects of the matter for which the appeal is the appropriate forum. 8. Learned Counsel for the appellant took us to certain reports and annexures saying that there was no violation committed by the appellant and the map was sanctioned. For consideration of the said submission, it requires examination of the factual aspects and other aspects of the matter for which the appeal is the appropriate forum. We are satisfied that no error has been committed in relegating the appellant to the statutory remedy provided under Section 27 of the U.P. Urban Planning and Development Act, 1973. The appellant may seek his remedy as provided in the statute. We do not find any ground to interfere with the order of the learned Single Judge. The appeal is dismissed. Appeal Dismissed. ———