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2016 DIGILAW 3508 (ALL)

Raj Kumar Yadav v. State of U. P

2016-10-20

ANIL KUMAR

body2016
JUDGMENT Anil Kumar, J. Heard Sri R.D. Shahi, learned counsel for petitioner, Sri M.E. Khan, learned State counsel and perused the record. 2. By means of the present writ petition, the petitioner has challenged the impugned order dated 26.08.2016 (Annexure No. 1) passed by Sub-Division, Magistrate, Sadar, Lucknow. 3. Sri M.E. Khan, learned State counsel has raised a preliminary objection to the effect that against the order under challenge in the present writ petition, the petitioners have got statutory alternative remedy of appeal as well as revision under the statute which governs the field. 4. Sri R.D. Shahi, learned counsel for petitioners while rebutting the said contention submits that the matter in question has come up for consideration before this Court and by means of order dated 28.05.2015 passed in Writ Petition No. 3172 (MS) of 2015 (Raj Kumar Yadav and another Vs. State of U.P. and others) by the petitioner, allowed and the matter was remanded to the opposite party No. 3 to decide afresh. 5. He further submits that while deciding the matter, opposite party No. 3 has passed impugned order which is totally in contravention to the direction as given by this Court vide order dated 28.05.2015 passed in the case of Raj Kumar Yadav (Supra) as well as in violation of principles of natural justice. Even if, there is an alternative remedy available to the petitioner under the statute which governs the field, the petitioner can approach this court under Article 226 of the constitution of India before this Court and challenge the impugned order straightway. 6. I have heard learned counsel for parties and gone through the record. 7. No doubt, in the present case, this Court earlier in the litigation in question between the parties passed an order dated 28.05.2015 in Writ Petition No. 3172 (MS) of 2015 (Raj Kumar Yadav and another Vs. State of U.P. and others) and allowed the writ petition and remanded the matter to the opposite party No. 3 decide afresh. 7. No doubt, in the present case, this Court earlier in the litigation in question between the parties passed an order dated 28.05.2015 in Writ Petition No. 3172 (MS) of 2015 (Raj Kumar Yadav and another Vs. State of U.P. and others) and allowed the writ petition and remanded the matter to the opposite party No. 3 decide afresh. Thereafter, the matter has been considered and decided by the opposite party No. 3 by means of impugned order dated 26.08.2016 (Annexure No. 1) thereby rejecting the petitioners' claim, so keeping in view the said facts, even if the submission made by learned counsel for petitioner that the said order is in contravention to the direction issued by this Court in Writ Petition No. 3172 (MS) of 2015 (Raj Kumar Yadav and another Vs. State of U.P. and others), the same is without jurisdiction. 8. The said argument can be taken by the petitioner before appellate authority, thereafter revisional authority in the revision where he can get opportunity to raise said argument and the same be decided there. 9. Accordingly, taking into consideration the said facts as well as the law laid down by Hon'ble the Apex Court 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. (2006) 9 SCC 252 ." Para - 24- In City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Ors. (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." 10. The writ petition is dismissed on the ground that the petitioner has got statutory alternative remedy of appeal before the appellate authority against the impugned order under the statute which governs the field.