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2012 DIGILAW 1210 (ALL)

Ratan Housing and Development Ltd. v. State of U. P. and Others

2012-05-18

ANIL KUMAR

body2012
Anil Kumar, J.;— Heard Sri Anurag Srivastava, learned counsel for the petitioner, learned State Counsel and perused the record. By means of present writ petition, petitioner has challenged the impugned judgment and award dated 31.3.2011 ( Annexure no.4) and the consequential recovery order dated 13.5.2011 ( Annexure no.1) passed by opposite party no.2//Prescribed Authority under the Payment of Wages Act, 1936, U.P. Lucknow Region, Lucknow. Learned State Counsel has raised a preliminary objection in the present case that the petitioner has got efficacious alternative remedy of appeal under Section 17 of the Payment of Wages Act,1936 ( hereinafter referred to as an 'Act'), so the present writ petition liable to be dismissed on the said ground. In rebuttal, learned counsel for the petitioner submits that the impugned award dated 31.3.2011 passed by opposite party no.2 is an ex parte award so the same being illegal, arbitrary and in contravention of principles of natural justice and the petitioner cannot be relegated to file statutory remedy of appeal under Section 17 of the Act, so the present writ petition filed by the petitioner under Article 226 of the Constitution of India is maintainable. In view of the said fact, if an statutory remedy by way of filing appeal is available to a person then in that circumstances the same shall not be amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India as in the case of Titaghur Paper Mills Company Limited and another Vs. State of Orissa and others (1983 )2 SCC 433 wherein it was held as under:- "Where a right or liability is created by statute which give special remedy for enforcing it, that must be availed as the said statute provides a complete machinery in order to challenge the impugned action taken therein in the statute itself and not under Article 226 of the Constitution of India." In the case of Karnataka Chemical Industries and others Vs. Union of India and others (2000) 10 SCC 12, wherein it was held as under:- "When there is no challenge to the validity of any statutory provision, we see no reason as to why a writ petition should have been filed by passing the alternative remedy which is provided under the statute. Union of India and others (2000) 10 SCC 12, wherein it was held as under:- "When there is no challenge to the validity of any statutory provision, we see no reason as to why a writ petition should have been filed by passing the alternative remedy which is provided under the statute. On the short ground we dismiss this appeal, vacate the interim orders, direct the payment of the balance amount of duty along with interest @ 15% per annum with yearly rests. It will be open to the appellant to avail of such statutory remedy as may be available to it. If an appeal is filed within four weeks from today, the Department will take a lenient view in condoning the delay." In the case of Central Coalfilds Limited Vs. State of Jharkhand and others (2005) 7 SCC 492 , wherein it was held as under:- "If there is statutory alternative remedy available to a person under an statute itself, in that case the writ petition should nto be entertained under Article 226 of the Constitution of India and the petitioner is directed to avail the alternative statutory remedy." In the case of State Bank of India Vs. Allied Chemical laboratories and another, (2006) 9 Supreme Court Cases, 252, Hon'ble Supreme Court has held as under:- " In the facts and circumstances of this case, we hold that the respondent ought to have availed the remedy provided under Section 20 of the Act and preferred an appeal before the Appellate Tribunal wherein he could have urged all his grievances and challenged the decree/final order passed by the DRT. The order passed by the High Court in exercise of writ jurisdiction is wholly unjustified and it is accordingly set aside." In the case of Kanaiyalal Lal Chand Sachdev and others Vs. State of Maharashtra and others (2011) 2 SCC 782 , in para Nos. 23 and 24 held as under:- "Para - 23 - In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the Appellants under Section 17 of the Act. It is well-settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See: Sadhana Lodh v. National Insurance Co. Ltd. and Anr. It is well-settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See: Sadhana Lodh v. National Insurance Co. Ltd. and Anr. (2003) 3 SCC 524 ; Surya Dev Rai v. Ram Chander Rai and Ors. (2003) 6 SCC 675 ; State Bank of India v. Allied Chemical Laboratories and Anr. (2006) 9 SCC 252 ." Para - 24- In City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Ors. (2009) 1 SCC 168 , this Court had observed that: The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the Petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors." In view of the above said facts, the petitioner has got alternative efficacious remedy for filing an appeal so the present writ petition is liable to be dismissed on the said ground. No other point has been argued or pressed by the learned counsel for the petitioner before me. For the foregoing reasons, the writ petition is dismissed on the ground of alternative remedy available. _____________