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2020 DIGILAW 237 (UTT)

Sukhbir Singh v. District Supply Office

2020-06-08

R.C.KHULBE, RAMESH RANGANATHAN

body2020
JUDGMENT : Ramesh Ranganathan, C.J. 1. Heard Sri. Dharmendra Barthwal, learned counsel for the appellant-writ petitioner and Sri. Anil Bisht, learned Standing Counsel for the State Government appearing on behalf of both the respondents. 2. The appellant herein filed Writ Petition (M/S) No. 618 of 2020 seeking a writ of certiorari to quash the order dated 24.02.2020 passed by the Commissioner, Garhwal whereby 20.03.2020 was fixed as the date for hearing on the maintainability of the appeal and, consequently, the Interim Relief Application remained pending. 3. In the order under appeal dated 06.03.2020, the learned single Judge noted that the appellant-writ petitioner had a fair-price shop at Village Maharajpur Kala, Laksar, in District Haridwar; on a complaint made against the appellant-writ petitioner, his fair-price shop license was suspended, by the District Magistrate, by order dated 04.02.2020; aggrieved thereby, the appellant-writ petitioner had preferred an appeal before the Commissioner which is presently pending, and the next date fixed in the matter was 20.03.2020; since no interim relief had been granted to the appellant-writ petitioner, in the appeal filed by him before the Commissioner, he had filed the present writ petition; and considering the nature of the case, and the fact that the Commissioner was seized of the matter, no interference was called for by the Court at that stage. The writ petition was disposed of with a direction to the Commissioner to decide the appeal of the appellant-writ petitioner, as expeditiously as possible, in accordance with law. Aggrieved thereby, the present Appeal. 4. Sri. Dharmendra Barthwal, learned counsel for the appellant- writ petitioner, would submit that the respondents have put in doubt the very maintainability of the appeal; though the appeal was filed in February, 2020, the said appeal has not been heard on its maintainability till date, though more than three months have elapsed; and, in such circumstances, this Court should examine the validity of the order of suspension, as existence of an alternative remedy does not bar exercise of jurisdiction under Article 226 of the Constitution of India. 5. 5. While it is true that under certain circumstances, such as where the order impugned in the writ petition is in violation of fundamental rights or is in violation of the rules of natural justice or is an order passed without jurisdiction, the existence of an alternative remedy may not bar exercise of jurisdiction by this Court, the fact remains that the jurisdiction, which this Court exercises under Article 226 of the Constitution of India, is discretionary. The appellant-writ petitioner has questioned the order passed by the District Magistrate, suspending his fair-price shop license, by way of an appeal to the Commissioner, and the said appeal is still pending. Having elected to approach the Commissioner, the appellant-writ petitioner cannot simultaneously invoke the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India. The doctrine of election is attracted, and the appellant-writ petitioner, having elected to approach the Commissioner and as long as the said appeal has not been decided, cannot simultaneously approach this Court in writ proceedings. 6. We see no reason, in such circumstances, to fault the learned single Judge in refusing to entertain the writ petition. While there has, no doubt, been a delay in deciding the appellant-writ petitioner's appeal, the prevailing circumstances of a Covid-19 pandemic, and the consequent lockdown in force from 25.03.2020 onwards may have also contributed to the delay in the appeal being decided at an early date. 7. It must, however, be borne in mind that, consequent on his fair-price shop license being suspended, the appellant-writ petitioner has been disabled from operating his fair-price shop for the past more than four months. It is but appropriate that the Commissioner decides the appeal, or the stay application, with utmost expedition. 8. Without expressing any opinion on the maintainability of the appeal, or on its merits, we modify the order under appeal and direct the Commissioner to decide the maintainability of the appeal, along with the interim application (or the appeal itself), with utmost expedition and, in any event, within one month from today. 9. The writ petition is, accordingly, disposed of. 10. Let a certified copy of this order be made available to the learned counsel for the parties, by 09.06.2020, on payment of the prescribed charges.