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2013 DIGILAW 163 (ALL)

RANVIR SINGH v. STATE OF U. P.

2013-01-15

ADITYA NATH MITTAL, S.P.MEHROTRA

body2013
JUDGMENT By the Court.—The present Writ Petition has been filed by the petitioner, inter alia, praying for quashing the Order dated 24.12.2012 passed by the respondent No. 2 (Upper Mukhya Adhikari/Licensing Authority, Zila Panchayat Auraiya, District Auraiya). 2. It appears that the licence for holding Cattle Fair in Village- Dowamafi, Vikas Khand Airwa Katra, Tehsil-Vidhna, District-Auraiya, has been granted in favour of the respondent No. 3 by the Order dated 24.12.2012 issued by the respondent No. 2 for the period mentioned in the said Order. 3. The petitioner being aggrieved by the said Order, has filed the present Writ Petition seeking the reliefs mentioned above. 4. We have heard Shri A.K. Dixit, learned counsel for the petitioner, Shri Anshu Chaudhary, learned counsel for the respondent No. 2, and the learned Standing Counsel appearing for the respondent No. 1. 5. Shri Shivam Yadav, Advocate states that he has filed Caveat on behalf of the respondent No. 3 in the Registry on 10.1.2013. Let the Caveat be traced out and placed on record. Shri Shivam Yadav has also been heard. 6. Shri Anshu Chaudhary, learned counsel for the respondent No. 2 has raised a preliminary objection that against the impugned Order dated 24.12.2012, the petitioner has an alternative remedy of filing Appeal under Section 251 of the U.P. Kshettra Panchayat and Zilla Panchayat Adhiniyam, 1961 (in short “ the 1961 Act”). 7. It is further brought to the notice of this Court by Shri Anshu Chaudhary, learned counsel for the respondent No. 2 that petitioner has already filed an Appeal before the District Magistrate, Auraiya on 26th December, 2012, as is evident from a perusal of Annexure 9 to the Writ Petition. 8. Shri Anshu Chaudhary, learned counsel for the respondent No. 2 has further relied upon a decision of this Court in Civil Misc. Writ Petition No. 48620 of 2012 (Zila Panchayat Auraiya and another v. State of U.P. Through Secretary and others), decided on 1.10.2012, in this regard. Copy of the said Decision has been filed as Annexure 5 to the Writ Petition. 9. Shri A.K. Dixit, learned counsel for the petitioner submits that the existence of alternative remedy is not an absolute bar to the entertainment of the Writ Petition under Article 226 of the Constitution of India, and therefore, the Writ Petition may be entertained despite the existence of such alternative remedy. 10. 9. Shri A.K. Dixit, learned counsel for the petitioner submits that the existence of alternative remedy is not an absolute bar to the entertainment of the Writ Petition under Article 226 of the Constitution of India, and therefore, the Writ Petition may be entertained despite the existence of such alternative remedy. 10. We have considered the submissions made by the learned counsel for the parties. 11. Section 251 of the 1961 Act (i.e., The U.P. Kshettra Panchayat and Zila Panchayat Adhinium, 1961) is quoted below: “251. Appeals from order of Zila Panchayat.—(1) Any person aggrieved by any order or direction made by a Zila Panchayat or a Kshettra Panchayat, as the case may be, under the powers conferred upon it by Sections 165 (1), 171, 184, 191 (6), 193, 202, 216, 218, 221 or under a bye-law made under sub-head (a) of Heading D and under Heading E of sub-section (2) of Section 239, may within thirty days from the date of such direction or order, exclusive of the time requisite for obtaining a copy thereof, appeal to such officers as the State Government may appoint, for the purpose of hearing such appeals or any of them or, failing such appointment, to the District Magistrate. (2) The appellate authority may, if it thinks fit, extend the period allowed by sub-section (1) for appeal. (3) No appeal shall be dismissed or allowed in part or whole unless reasonable opportunity of showing cause or being heard has been given to the parties. “ 12. The licence for running cattle fair is granted under the Bye-laws framed in respect of the Zilla Panchayat Auraiya as contemplated under Heading-D of sub-section (2) of Section 239. Copy of the Bye-laws for controlling and regulating Cattle Fair etc. framed under Section 143 read with Section 239 (2) of the 1961 Act in respect of Zila Panchayat, Auraiya, and published in the Official Gazette, has been filed as Annexure 1 to the Writ Petition. 13. The impugned Order, has therefore, been passed in exercise of powers conferred under the Bye-laws framed under Heading-D of sub-section (2) of Section 239 of the 1961 Act. Therefore, an Appeal against such order would lie to the Appellate Authority under Section 251 of the 1961 Act. 14. As held by this Court in the aforesaid decision in Civil Misc. The impugned Order, has therefore, been passed in exercise of powers conferred under the Bye-laws framed under Heading-D of sub-section (2) of Section 239 of the 1961 Act. Therefore, an Appeal against such order would lie to the Appellate Authority under Section 251 of the 1961 Act. 14. As held by this Court in the aforesaid decision in Civil Misc. Writ Petition No. 48620 of 2012 (Zila Panchayat Auraiya and another v. State of U.P. Through Secretary and others), the Appellate Authority under Section 251 of the 1961 Act is the District Magistrate in respect of an order passed by the Uppar Mukhya Adhikari granting licence for running cattle fair. 15. As is evident from a perusal of Annexure 9 to the Writ Petition, the petitioner has already filed an Appeal before the District Magistrate, Auraiya against the impugned Order dated 24.12.2012. Thus, the petitioner is already pursuing an alternative remedy available to him. 16. As the petitioner is already pursuing an alternative remedy available to him, we are not inclined to exercise our Writ Jurisdiction under Article 226 of the Constitution of India in the present case. 17. The Writ Petition filed by the petitioner is liable to be dismissed on the ground that the petitioner is already pursuing an alternative remedy available to him, and the same is accordingly dismissed on the said ground. 18. We may, however, observe that the District Magistrate, Auraiya will proceed to decide the Appeal filed by the petitioner expeditiously, preferably within a period of one month of the filing of a Certified Copy of this Order before him, after giving reasonable opportunity of showing cause and hearing to the petitioner as well as the respondent No. 3 and other concerned persons and by passing a speaking order. ——————