THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI
WRIT PETITION No. 36640 OF 2022
O R D E R:
This writ petition is filed seeking the following relief:
" ... to issue writ, order or direction more particularly one in the nature of writ of mandamus declaring the action of official respondents in not registering the complaint dt.24.08.2022 filed by petitioner on the file of JAWAHARNAGAR POLICE STATION against unofficial respondents as well as not recovering the vehicle of petitioner bearing No.TS08GV5852 Maruti Vitara Brezza - Silver colour as illegal and arbitrary and consequently direct the official respondent to immediately act upon the complaint of petitioner ..."
2. Sri P.Ravi Kiran, learned counsel for the petitioner, submits that the petitioner is the absolute owner of vehicle bearing No.TS08GV5852, which was purchased by him in the year 2020 by hypothecating the same with M/s.Axis Bank Limited, Ranigunj, Secunderabad. He submits that the petitioner and the unofficial respondents had business transactions and the unofficial respondents have paid an amount of Rs.7 lakhs in all by account transfer as advance for expenses for processing loan. The unofficial respondents herein along with their henchmen had illegally taken the said car into their custody by trespassing into the office of the petitioner. The petitioner went to respondent police to register F.I.R against the unofficial respondents, but they refused to register the complaint. It is stated that the duty of the police officer is to register a case and carry out proper 2 investigation into the matter and ascertain the cause behind the complaint. Learned counsel submits that the inaction of the respondent police is highly arbitrary and illegal. Hence, the petitioner has come up before this Court by filing a Writ Petition.
3. Learned Assistant Government Pleader for Home Sri A. Manoj Kumar submits that he will get instructions in this matter and file a detailed counter.
4. Though there are no fetters in entertaining a writ petition under Article 226 of the Constitution of India, whenever a person complains of violation of his fundamental right or statutory right, one of the self imposed restraint is when there is statutorily engrafted adequate and efficacious alternative remedy available to such person to redress his grievance the court do not entertain the writ petition but relegate the party to avail such remedy before invoking extraordinary jurisdiction of this Court. Bhimidipati Annapoorna Bhavani v. Land Acquisition Officer, Yeluru Reservoir Project, Peddapuram, East Godavari District, A.P. and others1,
5. The Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the 1 2005(3) ALD 233(LB) 3 fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [AIR 1964 SC 1419] , Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation." (emphasis supplied) Commissioner of Income Tax v. Chhabil Dass Agarwal2
6. Despite wide powers conferred by Article 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise.
State of West Bengal v. Committee for Protection of Democratic Rights3 2 (2014) 1 SCC 603 3 (2010) 3 SCC 571 4
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, 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 and is challenged.
Harbanslal Sahnia v. Indian Oil Corpn. Ltd.4
8. Generally, this Court is not entertaining the Writ Petitions filed questioning the registration or non-registration of the complaint / FIR, as, as rightly pointed out by the learned Assistant Government Pleader, the Coordinate Bench of this Court in Writ Petition No. 38397 of 2019 and batch, dated 08.03.2019 has categorically observed that in the case of non- registering the complaint, the remedy for the affected person is to file a private complaint.
4
(2003) 2 Supreme Court Cases 107 5
9. The writ remedy is no doubt an extraordinary remedy and in every case just because a case is made out on action / inaction of an authority vested with power, the Writ court will not entertain the writ petition and the affected party has to avail the remedy available under law. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai5, the Hon'ble Apex Court has observed that under Article 226 of the Constitution, the High Court having regard to the facts and circumstances has discretion to entertain or not to entertain a writ petition but the High Court has imposed certain restrictions one of which is that if an effective alternative remedy is available, the High court would not normally exercise the 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.
10. In the light of the law laid down by this Court and the Apex Court referred to supra, when there is a statutorily-engrafted adequate and efficacious alternative remedy available to the person, who complains, to 5 (1998) 8 SCC 1 6 redress his grievance, the Court do not entertain the writ petition but relegate the party to avail such remedy before invoking extraordinary jurisdiction of this Court. In this case, the effective alternative remedy available to the petitioner is to file a private complaint under Section 200 Cr.P.C., which is an effective alternative remedy, but not a Writ Petition invoking Article 226 of the Constitution of India. Therefore, this Court finds no reason to entertain this Writ Petition.
11. The Writ Petition is, accordingly, disposed of giving liberty to the petitioner to avail appropriate remedy available to him under law. There shall be no order as to costs.
Miscellaneous applications, pending if any, shall stand automatically closed.
__________________________ LALITHA KANNEGANTI, J September 23, 2022 mar