Allahabad High Court
Satendra Kumar vs State Of U.P. And 3 Others on 22 May, 2023
Bench: Anjani Kumar Mishra, Nand Prabha Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:112575-DB
Court No. - 46
Case :- CRIMINAL MISC. WRIT PETITION No. - 4393 of 2023
Petitioner :- Satendra Kumar
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Ardhendu Shekhar Sharma,Ram Babu Sharma
Counsel for Respondent :- G.A.
Hon'ble Anjani Kumar Mishra,J.
Hon'ble Ms. Nand Prabha Shukla,J.
Heard learned counsel for the petitioner and learned AGA for the State.
The writ petition seeks following relief:
"i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 23.01.2023 passed by the District Magistrate, Hapur, District Hapur in Case No. 285 of 2022 (Computerized Case No. D202211730000285) State Versus Satendra Kumar under Section 3/4 U.P. Control of Goondas Act, 1970 (Annexure No.2) to this writ petition."
The order dated 21.01.2023 impugned in the writ petition is an order of externment passed against the petitioner under the provisions of U.P. Control of Goondas Act. The period of externment specified in the order impugned is six months which period shall expire on 23.06.2023.
On a query by the Court as to whether the petitioner preferred an appeal against the order of externment the answer is a categorical 'No'.
Under the Act, against an order of externment passed by District Magistrate, Section 6 of the Act provides for an appeal to be filed before the Commissioner. This statutory alternative remedy has not been availed by the petitioner. Therefore, the petition, in our considered opinion, is liable to be dismissed on the ground of availability of statutory alternative remedy.
At this stage, learned counsel for the petitioner has submitted that existence of an alternative remedy is not an absolute bar and that despite the existence of a statutory alternative remedy, the Writ Court is not powerless and can, in appropriate cases, entertain the writ petition.
For this purpose, reliance has been placed on the judgment dated 26.10.1998 in Whirpool Corporation vs Registrar of Trade Marks, Mumbai. Considering the question which is raised by learned counsel for the petitioner, the judgment cited is held as follows:
"There is a plethora of case law on this point but to cut down this circle of fornices whirlpool we would rely or some old decisions of the evolutionary era of the constitutional law as they still hold the field.
Rashid Ahmad vs. Municipal Board, kairana, AIR 1960 SC 163, laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting Writs. This was followed by another Rashid case, namely, K.S.Rashid & Son Vs. The Income Tax Investigation Commissioner AIR 1954 SC 207 which reiterated the above proposition and held that where alternative remedy esisted, it would be a sound exercise of discreation to refuse to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that Writ Petition under Article 226 could still be entertained in exceptional circumstances. Specific and clear rule was laid down in State of U.P. vs. Mohd. Nooh 1958 SCR 595 = AIR 1958 SC 86, as under :
"But this rule requiring the exhaustion of statutory remedies before the Writ will be granted is a rule of policy convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies."
This proposition was considered by a Constitution Bench of this Court in A.V.Venkateswaran, Collector of Customs. Bombay vs Ramchand Sobhraj Wadhwani & Anr. AIR 1961 SC 1506 and was affirmed and followed in the following words "The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus per-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court".
Another Constitution Bench decision in Calcutta Discount co.Ltd. vs Income Tax Officer Companies Distt. I AIR 1961 SC 372 laid down :
"Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment. the High Court will issue appropriate orders or directions to prevent such consequences. Writ of certiorari and prohibition can issue against Income Tax Officer acting without jurisdiction under 8.34 I.T.Act".
Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation."
It is not the case of the petitioner nor it can be the case of the petitioner that the District Magistrate while exercising powers conferred under Section 3/4 of U.P. Control of Goondas Act is not competent to pass an order of externment.
Under the circumstances, therefore and since the District Magistrate has power under the Act to pass an order of externment, no benefit of the judgment cited can accrue to the petitioner.
It is also sought to be contended that only a period of one month remains before the order of externment would work itself out.
The same, in our considered opinion, cannot improve the petitioner's case. No reason has been offered in the writ petition as to why the statutory alternative remedy was not availed by the petitioner. The grounds taken in the writ petition are that petitioner has no criminal history nor is involved in any criminal activity, which in any case, is beyond the scope of the writ petition.
Under the circumstances, the writ petition is dismissed on the ground of availability of statutory alternative remedy which the petitioner, in case so advised, may avail.
Order Date :- 22.5.2023
Aditya Tripathi
