Srawan Kumar Pandey vs Judicial Magistrate - III… — Writ and Judicial Review

Neutral Citation No. - 2025:AHC-LKO:39970

Court No. - 13

Case :- MATTERS UNDER ARTICLE 227 No. - 3876 of 2025

Petitioner :- Srawan Kumar Pandey Respondent :- Judicial Magistrate - Iii Lucknow And 2 Others Counsel for Petitioner :- In Person Counsel for Respondent :- G.A.

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Hon'ble Saurabh Lavania,J.

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Heard Sri Srawan Kumar Pandey, petitioner in person and Sri S.P. Tiwari, learned AGA for the State of U.P. as well as perused the record.

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The instant petition has been preferred seeking following main relief(s):-

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"i) Direct the opposite party No-1 to dispose of the application dated 07-02-2024 contained as Annexure No-1 to this petition."

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It appears from the record that earlier the petitioner approached this Court by means of CRIMINAL MISC. WRIT PETITION No. 3784 of 2025 (Srawan Kumar Pandey vs. State Of U.P. Thru. Prin. Secy. Home Lko. And 2 Others). This petition was consigned to record by the Division Bench of this Court vide order dated 05.05.2025, which reads as under:-

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"Heard learned counsel for petitioner and learned A.G.A. for the State.

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This petition seeks issuance of a writ in the nature of mandamus commanding and directing the opposite party no.2 to decide the application dated 09.04.2025 of the petitioner contained as Annexure No.1 to this writ petition.

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After arguing at some length, learned counsel for petitioner prays to withdraw present writ petition with liberty to move appropriate application before the Court concerned under Article 227 of the Constitution of India or under Section 529 of B.N.S.S.,2023.

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Accordingly, the writ petition is consigned to record as withdrawn with the liberty as prayed above."

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From the above quoted order, it is apparent that the aforesaid petition was filed for expeditious disposal of the application dated 09.04.2025 filed by the petitioner.

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It further appears from the record that after the aforesaid, the petitioner again approached this Court by means of APPLICATION U/S 483 No. 474 of 2025 (Srawan Kumar Pandey vs. State Of U.P. Thru. Prin. Secy. Home Lko. And 2 Others). This application was dismissed by this Court vide order dated 05.06.2025, which reads as under:-

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"Heard.

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This application has been filed as per liberty granted by this Court.

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On an objection raised by learned AGA that this application under Section 528 BNSS is not maintainable as the applicant is seeking a direction for disposal of the application dated 09.04.2025 moved before the Commissioner of Police, Lucknow, Sri Sarwan Kumar Pandey, applicant-in-person submits that the petition may be dismissed as not pressed with liberty to avail the appropriate remedy in terms of the judgment passed by the Division Bench of this Court.

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In view of above, the petition is dismissed as not pressed with liberty as aforesaid."

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A conjoint reading of the orders dated 05.05.2025 and 05.06.2025, quoted above, indicate that the application dated 09.04.2025 filed by the petitioner, in relation to which both the aforesaid cases were filed before this Court, was pending before the Commissioner of Police, Lucknow. The instant petition has been filed in relation to the application dated 07.02.2024 filed in Criminal Complaint No. 906/2013, under Sections- 500, 323, 504, 506 IPC, Police Station- Madiyaon, District- Lucknow, which is pending before the Judicial Magistrate- III, Lucknow.

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Considered the aforesaid and the language couched under Section 529 of B.N.S.S., 2023 and also the law on the issue.

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The Hon'ble Apex Court in the case of Titaghur Paper Mills Co. Ltd. & another Vs. State of Orrisa and others, (1983) 2 SCC 433 , has observed that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of. In paragraph 11 of the above report, the Court observed thus:-

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"11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton6 in the following passage:

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"There are three classes of cases in which a liability may be established founded upon statute. . . . But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."

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The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. (1919 AC 368) and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. (1935 AC 532) and Secretary of State v. Mask & Co. (AIR 1940 PC 105). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."

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(emphasis supplied)

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In the subsequent decision in Mafatlal Industries Ltd. & others Vs. Union of India & others, (1997) 5SCC 536 , the Hon'ble Apex Court went on to observe that an Act cannot bar and curtail remedy under Article 226 or 32 of the

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Constitution. The Court, however, added a word of caution and expounded that the constitutional Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions of the enactment. To put it differently, the fact that the High Court has wide jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by the statute.

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In a recent decision in Radha Krishan Industries v. State of H.P., (2021) 6 SCC 771 , the Hon'ble Apex Court observed as under:-

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"25. In this background, it becomes necessary for this Court, to dwell on the "rule of alternate remedy" and its judicial exposition. In Whirlpool Corpn. v. Registrar, Trade Marks [Whirlpool Corpn. v. Registrar, Trade Marks, (1998) 8 SCC 1] , a two-Judge Bench of this Court after reviewing the case law on this point, noted : (SCC pp. 9-10, paras 14-15)

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'14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the fundamental rights contained in Part III of the Constitution but also for "any other purpose".

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15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.'

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26. Following the dictum of this Court in Whirlpool Corpn. v. Registrar, Trade Marks [Whirlpool Corpn. v. Registrar, Trade Marks, (1998) 8 SCC 1] , in Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107] , this Court noted that : (Harbanslal Sahnia case [Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107] , SCC p. 110, para 7)

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'7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies : (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. v. Registrar, Trade Marks [Whirlpool Corpn. v. Registrar, Trade Marks, (1998) 8 SCC 1] .) The present case attracts applicability of the first two contingencies. Moreover, as noted, the appellants' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings.'

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27. The principles of law which emerge are that:

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27.1. 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.

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27.2. 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.

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27.3. 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.

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27.4. 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.

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27.5. 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.

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27.6. 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."

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(emphasis in original)

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Upon due consideration of the aforesaid, this Court is of the view that in the statute itself a mechanism for redressal of the grievance is provided, as such, this Court is not inclined to entertain the present petition. It is accordingly dismissed , however, with liberty to the petitioner to avail the appropriate remedy as available under the law, as indicated above.

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Order Date :- 14.7.2025 Arun/-

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Digitally signed by :- ARUN KUMAR GANGWAR High Court of Judicature at Allahabad, Lucknow Bench

Srawan Kumar Pandey v. Judicial Magistrate - III Lucknow and 2 Others

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