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2013 DIGILAW 598 (HP)

Bimal Raj Sethi v. STATE OF H. P.

2013-06-25

A.M.KHANWILKAR, KULDIP SINGH

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JUDGMENT A.M.KHANWILKAR, C.J. 1. HEARD counsel for the parties. 2. THE first point raised is that the writ petition ought not to have been entertained when statutory remedy of appeal was available to the writ petitioner against the impugned decision. The learned Single Judge has rejected that objection on the ground that the said preliminary objection was not raised at the time of admission, but only at the time of final hearing of the writ petition. We see no reason to overturn that opinion of the learned Single Judge. It is not as if the High Court has no jurisdiction at all, because alternative remedy is available. That does not take away the jurisdiction of the High Court to exercise powers under Article 226 of the Constitution of India. This position is no more res integra. Hence, this plea is rejected. 3. IT is then contended that the writ petitioner had resorted to remedy of writ only after realizing that the statutory remedy of appeal had become time barred. We are of the opinion that this plea has not been taken before the learned Single Judge and for which reason, it cannot be permitted at this belated stage. More so, because the conclusion reached by the learned Single Judge is that the impugned decision was passed without authority of law. That decision could be passed only in exercise of powers under Section 80 (3) of the Motor Vehicles Act, 1988 and could not be done by invoking Section 72 (2) of the Act, as was done by the appropriate Authority. 4. IN view of this finding, the technical argument that writ petition was filed because appeal had become barred by limitation does not commend to us. Be that as it may, the learned Single Judge having entertained the writ petition on merits and since the preliminary objection now raised was not taken before the learned Single Judge, we cannot permit the appellant to take the other side by surprise in the present appeal proceedings. Hence, this contention is also rejected. As regards merits of the controversy, we have no hesitation in taking the view that the learned Single Judge was justified in the fact situation of the present case to hold that the power could be exercised only by invoking Section 80 (3) procedure and not by resorting to Section 72 (2) of the Act. That view is unexceptionable. As regards merits of the controversy, we have no hesitation in taking the view that the learned Single Judge was justified in the fact situation of the present case to hold that the power could be exercised only by invoking Section 80 (3) procedure and not by resorting to Section 72 (2) of the Act. That view is unexceptionable. Accordingly, this appeal should fail. 5. COUNSEL for the appellant, relying on paragraph 7 of the reply affidavit, would contend that, at the relevant time, the representation of the writ petitioner was pending, which could be decided by the appropriate Authority. We clarify that if there is any pending representation, then the impugned decision in the present appeal will be no impediment for the Authority to consider the same and decide in accordance with law. Besides this, nothing more needs to be observed. Accordingly, appeal is dismissed.