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2012 DIGILAW 2484 (ALL)

Shyam Lal v. State of U. P. and Others

2012-10-18

ANIL KUMAR

body2012
Anil Kumar, J.;— Heard learned counsel for the petitioner, learned State Counsel as well as Shri R. N. Gupta, learned counsel appearing on behalf of opposite party no.4 and perused the record. Shri R. N. Gupta, learned counsel for the contesting respondent submits that against the impugned order dated 7.8.2012 (Annexure No.12) passed by opposite party no.3/Sub Divisional Magistrate, Tehsil Akbarpur (now Tehsil Bhiti), District-Ambedkar Nagar, the petitioner has got an alternative remedy of revision under Section 219 of the Land Revenue Act, so the present writ petition is not maintainable, liable to be dismissed on the said ground. Learned counsel for the petitioner while disputing the abovesaid facts submits that the impugned order has been passed in contravention to the principles of natural justice and contrary to the facts of the case, so the petitioner cannot be delegated the statutory remedy of revision. Hence, the writ petition is maintainable under Article 226 of the Constitution of India. In this regard, he has placed reliance on the judgment given by this Court in the case of Shri Durgadevi Rural and Educational Development Society vs. State of U.P. and others 2010 (110) RD 697. Admittedly, in the present case the petitioner has challenged the order dated 7.8.2012 (Annexure No.12) passed by opposite party no.3 and against the said order the statutory remedy is available to the petitioner by way of revision under Section 219 of the Land Revenue Act. In view of the abovesaid facts and taking into consideration that once the statutory remedy is available to the petitioner under the statue which governs the field then in that circumstances he should avail the same and writ petition filed by him under Article 226 of the Constitution of India is not maintainable on the ground of availability of statutory remedy under the statute which governs the field in view of the law as laid down by the Apex Court in the following cases:- 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. 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 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. (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. (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 abovesaid facts as well as settled proposition of law, I do not find any good ground and sufficient reasons to entertain the present writ petition under Article 226 of the Constitution of India and the petitioner cannot drive any benefit of law cited in the case of Shri Durgadevi Rural (supra) as the ground which has been taken by the petitioners for challenging the impugned order can be very well taken in the revision before the revisional authority and the same can be adjudicated and decided by the said authority. For the foregoing reasons, the present writ petition is dismissed on the ground of availability of alternative statutory remedy of revision under Section 219 of the Land Revenue Act. _____________