The petitioned the High Court for a writ challenging an order under the U.P. Revenue Code. The Court held that the statutory appeal under Section 35(2) was an adequate remedy. It dismissed the petition on this ground, distinguishing cited precedents, without examining the merits of alleged fraud.
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Neutral Citation No. - 2024:AHC-LKO:51747
Court No. - 8
Case :- WRIT - C No. - 6524 of 2024
Petitioner :- Radhika Respondent :- Bagedan And Others Counsel for Petitioner :- Umesh Chandra,Shobhit Kumar Pandey Counsel for Respondent :- C.S.C.
Hon'ble Jaspreet Singh,J.
Heard learned counsel for the petitioner. Notice on behalf of respondent no.3 has been accepted by the office of Chief Standing counsel.
Learned counsel for the petitioner has filed supplementary affidavit which is taken on record.
A preliminary objection has been raised by the learned Additional Chief Standing counsel who submits that the petitioner has an adequate remedy of filing an appeal against the impugned order in terms of Section 35(2) of U.P. Revenue Code, 2006.
Learned counsel for the petitioner submits that though the petitioner has a remedy of appeal but the circumstances of the instant case are such which brings it within the exception as carved out by this Court in Kalawati vs Board of Revenue and 6 ors; 2022 SCC Online All 193 , therefore, the petition is maintainable.
He has further urged that private respondents have resorted to fraud. The issues which were raised by the petitioner have not been considered by the Tehsildar and ignoring the material available on record yet impugned orders are passed which are per se bad in the eyes of law. He further submits that in light of the dictum of this Court in Rudra Mani Shukla vs Subhash Kumar and ors; 2017(3) ADJ 510 (LB) where it has been held that even in mutation proceedings, the Court is required to consider the facts and indicate proper judicial application of mind, which has not been done in the instant case. Consequently, the petition is maintainable. He has also relied on the celebrated decision of the Apex Court in Whirpool Cooperation vs Registrar of Trade Marks, Mumbai ; 1999 (17) LCD- 219 to indicate that where the orders are patently without jurisdiction or passed are against the principles of
natural justice, then the bar of alternate remedy will not debar the Court from exercising its jurisdiction under Article 226 of the Constitution of India and for the aforesaid reasons, the petition be entertained.
The Court has heard learned counsel for the petitioner and perused the material on record. In so far as the issue of alternate remedy is concerned, it is now well settled that the bar of alternate remedy does not create as an absolute bar for the Court to consider and exercise jurisdiction under Article 226 of the Constitution of India. However, what is required to be seen is that in certain circumstances where an appeal is provided in the Act, itself, from which the proceedings emanate, in such circumstances the bar of statutory remedy operates as 'almost a near bar', this Court is fortified in its view in light of the decision of the Apex Court in M/s Radha Krishan Industries Vs. State of Himachal Pradesh and Others reported in 2021 SCC Online SCC 334. Considering the issue of availability of alternate remedy and principles of natural justice, the Apex Court in paragraph-27 has held as under:-
"27. The principles of law which emerge are that :
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."
Considering the aforesaid facts and circumstances of the case also noticing that the issue which is raised by the petitioner that certain documents have been got signed by the private respondents fraudulently are essentially, questions of fact which can be better appreciated by the appellate authority rather than this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
In so far as the decision cited by the learned counsel for the petitioner in case of Smt. Kalawati (supra) is concerned, the same has no applicability in as much as in that case the issue before the Court was whether a writ petition would lie after exhaustion of all the statutory tiers of litigation and that too in the summary proceedings which is apparently not the case here and even in the case Rudra Mani Shukla (supra) the Court was considering the manner in which the orders are to be passed requiring the Court to apply its judicial mind but it does not deal with the issue of alternate remedy. Moreover, the proposition laid down in the said case cannot be disputed as it is well settled but it has no applicability in the instant case.
Considering the aforesaid, this Court is not inclined to entertain the present petition as the petitioner has adequate remedy of filing an appeal. Accordingly, the petition is dismissed solely on the ground of availability of statutory remedy, leaving it open for the petitioner to assail the order in appeal if she so desires.
It is made clear that dismissal of the present petition shall not be taken as an expression of opinion of this Court on merits of the matter which shall be considered by the appellate authority on its own merit.
Order Date :- 30.7.2024 Harshita
Digitally signed by :- HARSHITA High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether the writ petition is maintainable despite the availability of an appeal under the U.P. Revenue Code, 2006.
Whether exceptions to the bar of alternate remedy regarding natural justice violations apply to facts of fraud and lack of judicial application.
Colour shows how this judgement treated each authority
Kalawati vs Board of Revenue and 6 orsDistinguished¶9
Kalawati vs Board of Revenue and 6 ors; 2022 SCC Online All 193 · Who else cites this
Rudra Mani Shukla vs Subhash Kumar and orsDistinguished¶10
Rudra Mani Shukla vs Subhash Kumar and ors; 2017(3) ADJ 510 (LB)
Whirpool Cooperation vs Registrar of Trade Marks, MumbaiReferred¶10
Whirpool Cooperation vs Registrar of Trade Marks, Mumbai ; 1999 (17) LCD- 219
M/s Radha Krishan Industries Vs. State of Himachal Pradesh and OthersExplained¶12
M/s Radha Krishan Industries Vs. State of Himachal Pradesh and Others reported in 2021 SCC Online SCC 334 · Who else cites this
Smt. KalawatiDistinguished¶21
Smt. Kalawati
Rudra Mani ShuklaDistinguished¶21
Rudra Mani Shukla
2 provisions across 2 enactments
Radhika
Bagedan And Others
Jaspreet Singh
As recorded by the court registry
2 orders share this CNR
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