C/M Sri Mahanth Ramashray Das ... vs State Of U.P. And 3 Others
2021 Latest Caselaw 11312 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 32
 

 
Case :- WRIT - C No. - 25840 of 2021
 

 
Petitioner :- C/M Sri Mahanth Ramashray Das Snakottar Mahavidyalaya And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C.S.C.,Ran Vijay Singh
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

1. Heard Mr. Vinod Kumar Singh, learned counsel for the petitioners, Mr. Ran Vijay Singh, learned counsel for the respondent-University, Ms. Pooja Agarwal, learned counsel for respondent no.4 and Mr. Shailendra Singh, learned Standing Counsel for the State-respondents.

2. This writ petition has been filed by the petitioners for the following relief:

"I. a writ, order or direction, in the nature of certiorari, quashing the impugned order dated 27.08.2021 passed by the Registrar, Veer Bahadur Singh Purvanchal University, Jaunpur (Annexure No. 3 to this Writ Petition).

II. a writ, order or direction, in the nature of certiorari, calling for the records and quash the impugned order dated 26.08.2021 passed by the Vice-Chancellor, Veer Bahadur Singh Purvanchal University, Jaunpur (if any).

III. a writ, order or direction, in the nature of mandamus, restraining the respondent no.4 from working as Manager of Sri Mahanth Ramashray Das Sankottar Mahavidyalaya, Bhudkuda, Ghazipur.

IV. any other suitable, writ, order or direction, as this Hon'ble Court may deem fit and proper under the facts and circumstances of the present case.

.................. "

3. On 7th October, 2021, the Court passed following order:

"The respondent nos. 2 and 3 are represented by Sri Ran Vijay Singh, Advocate. He may take instructions as to whether when there was no resolution for the extension of the term how the term had been extended.

Place this petition as fresh on 8.11.2021."

4. Learned counsel for the petitioner submits that without any resolution having been passed by the members of the committee of management as provided under para 11.1 of the registered bye-laws of the society, the Vice-Chancellor I.e. respondent no.3, only on a letter of the manager of the Committee of Management, has extended the term of the committee of management for a further period of one year, while passing the impugned order dated 28th August, 2021, which is per se illegal. He, therefore, submits that order impugned is liable to be quashed.

5. In reply, learned counsel for the respondent-University submits that pursuant to the order of the Court dated 7th October, 2021, he has received instruction and as per the said instruction, the impugned order has been passed on the resolution of the Committee of Management, which has been passed by the eight members (out of 11 members) of the committee of management for extending the term of the committee of management for a further period of one year. He also placed a photo copy of the said resolution before the Court today, which is taken on record. Apart from the above, the learned counsel for the respondents submits that against the order impugned, the petitioner has an efficacious statutory alternative remedy by way of reference before the Chancellor of the respondent-University under Section 68 of the U.P. State Universities Act. He, therefore, submits that this petition be dismissed on the ground of the aforesaid statutory alternative remedy.

6. I have considered the submissions made by the learned counsel for the parties and have examined the records of the present writ petition.

7. The issue of exhausting statutory remedy has been considered time and again by the Apex Court.

8. A Constitution Bench of the Apex Court, in K.S. Rashid & Son Vs. Income Tax Investigation Commission & Ors., reported in AIR 1954 SC 207, held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. The said power is limited. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. Similar view has been reiterated by the Apex Court in Sangram Singh Vs. Election Tribunal, Kotah & anr., reported in AIR 1955 SC 425, holding that the power of issuing writs are purely discretionary and no limit can be placed upon that discretion. However, the power can be exercised alone with recognised line and not arbitrarily and the Court must keep in mind that the power shall not be exercised unless substantial injustice has ensued or is likely to ensue and in other cases the parties must be relegated to the courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense.

9. Again a Constitution Bench of the Apex Court, in Union of India Vs. T.R. Varma, reported in AIR 1957 SC 882, held that it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. The Apex Court held that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such remedy exist, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution, unless there are good grounds therefor.

10. Yet another Constitution Bench of the Apex Court, in State of U.P. Vs. Mohammed Nooh, reported in AIR 1958 SC 86, considered the scope of exercise of writ jurisdiction when remedy of appeal was there and held that writ would lie provided there is no other equally efficacious remedy. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of fundamental principles of justice. Therefore, in a proper case, powers of writ can be exercised, but should not be exercised generally where other adequate legal remedy is available though it may not be, per se, a bar to issue a writ of prerogative. The Apex Court held that the remedy, being discretionary, cannot be asked as a matter of right, even if the order is a nullity, on the ground that it was passed by disregarding the rules of natural justice. The Court held as under:-

"..... save in exceptional cases, the courts will not interfere under Article 226 until all normal remedies available to a petitioner have been exhausted. The normal remedies in a case of this kind are appeal or revision. It is true that on a matter of jurisdiction or on a question that goes to the root of the case, the High Courts can entertain a petition at an early stage but they are not bound to do so and a petition would not be thrown out because the petitioner had done that which the Courts usually ask him to do, namely, to exhaust his normal remedies before invoking an extraordinary jurisdiction....... The petitioner would have been expected to persue the remedies of appeal or revision and could not have come to the High Court in the ordinary way until he had exhausted them."

11. In N.T. Veluswami Thevar Vs. G. Raja Nainar & ors., reported in AIR 1959 SC 422, the Apex Court held that the jurisdiction of the High Court to issue writs against the orders of the Tribunal is undoubted; but then, it is well settled that where there is another remedy provided, the Court must properly exercise its discretion in declining to interfere under Article 226 of the Constitution.

12. Another Constitution Bench of the Apex Court, in State of Madhya Pradesh & anr. Vs. Bhailal Bhai etc. etc., reported in AIR 1964 SC 1006, held that the remedy provided in a writ jurisdiction is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defence legitimately open in such actions. The power to give relief under Article 226 of the Constitution is a discretionary power. Similar view has been reiterated in Municipal Council, Khurai & anr. Vs. Kamal Kumar & anr., reported in AIR 1965 SC 1321.

13. In Siliguri Municipality & ors. Vs. Amalendu Das & ors., reported in AIR 1984 SC 653, the Apex Court held that the High court must exercise its power under Article 226 with circumspection and while considering the matter of recovery of tax etc., it should not interfere save under very exceptional circumstances.

14. In S.T. Muthusami Vs. K. Natarajan & ors., reported in AIR 1988 SC 616, the Apex Court held that the High Court cannot be justified to exercise the power in writ jurisdiction if an effective alternative remedy is available to the party.

15. In Kerala State Electricity Board & Anr. Vs. Kurien E. Kalathil & ors., reported in (2000) 6 SCC 293, while dealing with a similar issue, the Apx Court held that the writ petition should not be entertained unless the party exhausted the alternative/statutory efficacious remedy.

16. In A. Venkatasubbiah Naidu Vs. S. Chellappan & ors., reported in (2000) 7 SCC 695, the Apex Court deprecated the practice of exercising the writ jurisdiction when efficacious alternative remedy is available. The Court observed as under:-

"Though no hurdle can be put against the exercise of Constitutional powers of the High Court, it is a well recognised principle which gives judicial recognition that the High Court should direct the party to avail himself of such remedy, one or other, before he resorts to a Constitutional remedy."

17. Similar view has been reiterated in Rajasthan State Road Transport Corporation & Anr. Vs. Krishna Kant & Ors., reported in (1995) 5 SCC 75; L.L. Sudhakar Reddy & Ors. Vs. State of A.P. & Ors., reported in (2001) 6 SCC 634; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Anr. Vs. State of Maharashtra & Ors., reported in (2001) 8 SCC 509; G K N Driveshafts (India) Ltd. Vs. Income Tax Officer & Ors., reproted in (2003) 1 SCC 72; and Pratap Singh & Anr. Vs. State of Haryana, reported in (2002) 7 SCC 484.

18. In Harbanslal Sahnia & anr. Vs. Indian Oil Corporation Ltd. & ors., reported in (2003) 2 SCC 107, the Apex Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the Court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the writ seeks enforcement of any of the fundamental rights; where there is failure of principle of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. While deciding the said case, the Apex Court placed reliance upon its earlier judgment in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & ors., reported in (1998) 8 SCC 1.

19. A Constitution Bench of the Apex Court, in G. Veerappa Pillai Vs. Raman & Raman Ltd. & ors., reported in AIR 1952 SC 192, held that as the Motor Vehicles Act is a self contained code and itself provides for appealable/ revisable forum, the writ jurisdiction should not be invoked generally in matters relating to its provision.

20. Similar view has been reiterated in Assistant Collector of Central Exicse, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. & ors., reported in AIR 1985 SC 330; Ramendra Kishore Biswas Vs. State of Tripura & ors., reported in (1999) 1 SCC 472; and Shivgonda Anna Patil & Ors. Vs. State of Maharashtra & ors., (1999) 3 SCC 5.

21. In C.A. Ibraham Vs. Income-tax Officer, Kottayam & Anr., reported in AIR 1961 SC 609 and H.B. Gandhi, Excise & Taxation Officer-cum-Assessing Authority, Karnal & ors. Vs. M/s Gopinath & Sons & ors., reported in 1992 (Suppl.) 2 SCC 312, the Apex court held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction.

22. The Constitution Bench of the Apex Court, in M/s. K.S. Venkataraman & Co.(P) Ltd. Vs. State of Madras, reported in AIR 1966 SC 1089, considered the Privy Council judgment in Raleigh Investment Co. Ltd. Vs. The Governor-General in Council, reported in AIR 1947 PC 78 and held that the writ court can entertain the petition provided the order is alleged to be without jurisdiction or has been passed in flagrant violation of the principles of natural justice, or the provisions of the Act/ Rules is under challenge.

23. In Titaghur Paper Mills Co. Ltd. & anr. Vs. State of Orissa & Anr., reported in AIR 1983 SC 603, the Apex Court refused to extend the ratio of its earlier judgment in State of U.P. Vs. Mohammad Noor, reported in AIR 1958 SC 86, wherein the Court had held that prerogative writ can be issued to correct the error of the Court or Tribunal below even if an appeal is provided under the statute under certain circumstances, i.e. the order is without jurisdiction, or principles of natural justice have not been followed, and held that in case of assessment under the Taxing Statute, the principle laid down by the Privy Council in Raleigh Investment Co. Ltd. (supra) would be applicable for the reason that "the use of the machinery provided by the Act, not the result of that use, is the test."

24. In Whirlpool Corporation (Supra) and Tin Plate Co. of India Ltd. Vs. State of Bihar & ors., reported in AIR 1999 SC 74 the Apex Court came to the conclusion that writ should not generally be entertained if statute provide for remedy of appeal and even if it has been admitted, parties should be relegated to the appellate forum.

25. In Sheela Devi Vs. Jaspal Singh, reported in (1999) 1 SCC 209, the Apex Court has held that if the statute itself provides for a remedy of revision, writ jurisdiction cannot be invoked.

26. In Punjab National Bank Vs. O. C. Krishnan and others, reported in AIR 2001 SCW 2993, the Apex Court, while considering the issue of alternative remedy observed as under:-

"The Act has been enacted with a view to provide a special procedure for recovery of debts due to the banks and the financial institutions. There is hierarchy of appeal provided in the Act, namely, filing of an appeal under S.20 and this fast track procedure cannot be allowed to be derailed either by taking recourse to proceedings under Arts. 226 and 227 of the Constitution or by filing a civil suit, which is expressly barred. Even though a provision under an Act cannot expressly oust the jurisdiction of the Court under Arts. 226 and 227 of the Constitution, nevertheless when there is an alternative remedy available judicial prudence demands that the Court refrains from exercising its jurisdiction under the said constitutional provisions. This was a case where the High Court should not have entertained the petition under Art. 227 of the Constitution and should have directed the respondent to take recourse to the appeal mechanism provided by the Act."

27. In State of Himachal Pradesh Vs. Raja Mahendra Pal & ors., reported in AIR 1999 SC 1786 while dealing with a similar issue the Apex Court has held as under:-

"It is true that the powers conferred upon the High Court under Article 226 of the Constitution are discretionary in nature and can be invoked for the enforcement of any fundamental right or legal right-------. The constitutional Court should insist upon the party (to avail of the efficacious alternative remedy) instead of invoking the extraordinary writ jurisdiction of the Court. This does not however debar the court from granting the appropriate relief to a citizen in peculiar and special facts notwithstanding the existence of alternative efficacious remedy. The existence of special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article."

28. In Govt. of A.P. & ors. Vs. J. Sridevi & ors., reported in AIR 2002 SC 1801, the Apex Court held that where a authority is competent to determine the issue, "the High Court in a writ jurisdiction should have directed the authority only to take an appropriate decision". When the statutory authority is vested with the power to determine the question as to the applicability of the provisions of the Act, it is ordinarily desirable to leave the question to be decided by such authority. The aggrieved party can file appeal against the decision within the framework provided under the statute and the ultimate decision also could be challenged under judicial review, if permitted in law

29. In the State of Bihar & ors Vs. Jain Plastics & Chemicals Ltd., reported in AIR 2002 SC 206, the Apex Court held that existence of alternative remedy does not affect the jurisdiction of the writ court but it could be a good ground for not entertaining the petition.

30. In Champalal Binani Vs. The Commissioner of Income-tax, West Bengal & ors., reported in AIR 1970 SC 645, the Court observed as under:-

"Before parting with the case we deem it necessary once more to emphasize that the Income-tax Act provides a complete and self-contained machinery for obtaining relief against improper action taken by the departmental authorities, and normally the party feeling himself aggrieved by such action cannot be permitted to refuse to have recourse to that machinery and to approach the High Court directly against the action. The assessee had an adequate remedy under the Income-tax Act which he could have availed of. He however, did not move the Income-tax Appellate Tribunal which was competent to decide all questions of fact and law which the assessee could have raised in the appeal including the grievance that he had not adequate opportunity of making his representation and invoked the extraordinary jurisdiction of the High Court. In our judgment, no adequate ground was made out for entertaining the petition. A writ of certiorari is discretionary; it is not used merely because it is lawful to do so. Where the party feeling aggrieved by an order of an Authority under the Income-tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition for a writ. Where the aggrieved party has an alternative remedy, the High Court would be slow to entertain a petition challenging an order of a taxing authority which is ex facie with jurisdiction. A petition for a writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises question of jurisdiction or of infringement of fundamental rights of the petitioner. The present case was one in which the jurisdiction of the High Court could not be invoked."

31. Similar view has been reiterated in U.P. State Bridge Corporation Ltd. & Ors. Vs. U.P. Rajya Setu Nigam S. Karmchari Sangh, reported in (2004) 4 SCC 268; Bharat Petroleum Corpn. Ltd. & Anr. Vs. N.R. Vairamani & Anr., reported in (2004) 8 SCC 579; Tirupati Balaji Developers (P) Ltd. & Ors. Vs. State of Bihar & Ors., reported in (2004) 5 SCC 1.

32. In U.P. State Spinning Co. Ltd. Vs. R.S. Pandey & Anr., reported in (2005) 8 SCC 264, the Apex Court re-considered almost all of its earlier judgments on the issue.

33. In a catena of decisions it has been held that writ petition under Article 226 of the Constitution should not be entertained when the statutory remedy is available under the Act, unless exceptional circumstances are made out. By deciding the said case, the Apex Court placed reliance upon the judgment in R Vs. London Borough of Hillington, Council, reported in (1974) 2 All ER 643, wherein it had been held as under.

"It has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy.

.....................

The statutory system of appeals is more effective and more convenient than application for certiorari and the principal reason why it may prove itself more convenient and more effective is that an appeal to (say) the secretary of State can be disposed of at one hearing whether the issue between them is a matter of law or fact or policy or opinion or a combination of some or all of these....whereas of course an appeal for certiorari is limited to cases where the issue is a matter of law and then only it is a matter of law appearing on the face of the order.

.........

An application for certiorari has however this advantage that it is speedier and cheaper than the other methods and in a proper case therefore it may well be right to allow it to be used......I would, however, define a proper case as being one where the decision in question is liable to be upset as a matter of law because on its face it is clearly made without jurisdiction or in consequence of an error of law."

34. Similar view has been reiterated in Seth Chand Ratan Vs. Pandit Durga Prasad & Ors, reported in 2003 AIR SCW 3078.

35. In view of the aforesaid law laid down by the Apex Court and considering the facts and circumstances of the case, this writ petition is disposed of by providing that the petitioner, may make reference petition against the order impugned before the Chancellor of the University, under Section 68 of the U.P. State within three weeks from today, along with a certified copy of this order. On such reference petition being filed, the Chancellor of the respondent-University is requested to consider and decide the same, in accordance with law by means of a reasoned speaking order, preferably within one month thereafter after affording opportunity of hearing to the parties concerned.

(Manju Rani Chauhan, J.)

Order Date :- 12.11.2021

Sushil/-