Jagdish vs State Of U.P. Thru Prin.Secy.Food And ...
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Allahabad High Court

Jagdish vs State Of U.P. Thru Prin.Secy.Food And ... on 7 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2024:AHC-LKO:36391
 
A.F.R.
 
Court No. - 19
 
Case :- WRIT - C No. - 27068 of 2017
 

 
Petitioner :- Jagdish
 
Respondent :- State Of U.P. Thru Prin.Secy.Food And Civil Supply Lko. And Anr.
 
Counsel for Petitioner :- Awadhesh Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Subhash Vidyarthi J. 
 

Order on I.A. No. 4 of 2023 and I.A. No. 5 of 2023

I.A. No. 4 of 2023 has been filed seeking condonation of delay in filing application for recall of the order dated 26.09.2022. I.A. No. 5 of 2023 has been filed seeking recall of the order dated 26.09.2022 whereby the writ petition was dismissed due to non-appearance of the learned counsel for the petitioner. The reason assigned in the affidavits filed in support of the applications is that the clerk of the petitioner's Counsel mistakenly failed to mark the case in the cause list of 26.09.2022 and for this reason, the petitioner and his Counsel were not aware about the listing of the case on that date. The cause shown for recall of the order and for non appearance of the learned counsel for the petitioner is sufficient. The applications are allowed. The delay in filing the application for recall of order dated 26.09.2022 is condoned and order dated 26.09.2022 is recalled. The writ petition is restored to its original number.

Order on Writ Petition

1. Heard Sri Awadhesh Kumar Singh, the learned counsel for the petitioner and Sri Rajeev Ranjan Chaudhary, the learned counsel for the respondents.

2. By means of the instant petition filed under Section 226 of the Constitution of India, the petitioner has challenged validity of an order dated 12.10.2017 passed by the Sub-Divisional Magistrate, Tulsipur, District Balrampur whereby the fair price shop license of the petitioner was cancelled.

3. A counter affidavit was filed in this case on 31.02.2018 after serving a copy thereof on the learned counsel for the petitioner on 30.03.2018 but no rejoinder affidavit has been filed till date in spite of time having been sought and granted repetitively on 17.08.2018, 18.05.2018 and 24.08.2022, but the petitioner did not file a rejoinder affidavit. Therefore, the averments made in the counter affidavit remained uncontroverted. 

4. The learned Standing Counsel has raised a preliminary objection that the petitioner has a statutory remedy of filing an appeal under Section 13(3) of The Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016.

5. The learned Standing Counsel has relied upon a decision of the Hon'ble Supreme Court in N. P. Ponnuswami v. Returning Officer, Namakkalconstituency  & Ors: 1952 SCR 218, wherein the Hon'ble Supreme Court has held that "It is now well-recognized that where a right or liability is created by a statute which gives a special remedy for en- forcing it, the remedy provided by that statute only must be availed of."

6. Replying to the aforesaid preliminary objection, the learned counsel for the petitioner has relied upon a decision of this Court in M/s Mahatma Gandhi Upbhokta Samiti v. State of U.P. & Ors: 2001 19 LCD 513 and Lokman Singh v. Deputy General Manager, Western Zone, UPSRTC, Meerut & Ors: 2006 (8) ADJ 646.

7. In M/s. Mahatma Gandhi Upbhokta Samiti, this Court had entertained the writ petition on the ground that if there is a violation of principles of natural justice, alternative remedy shall not stand as a bar.

8. In Lokman Singh (supra), this Court had declined to relegate the petitioner to alternative remedy for the reason that the writ petition had been entertained in the year 1997 and counter and rejoinder affidavit have been exchanged and, therefore, it would not be proper to relegate the petitioner to an alternative remedy after the writ petition having remained pending for almost 10 years.

In Whirlpool Corpn. v. Registrar of Trade Marks: (1998) 8 SCC 1, a two-Judge Bench of the Hon'ble Supreme Court had held that: -

"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".

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."

(Emphasis in original)

Following the dictum of this Court in Whirlpool, in Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107, the Hon'ble Supreme Court held that: -

"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 of 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."

(Emphasis in original)

In Radha Krishan Industries v. State of H.P.: (2021) 6 SCC 771, a three Judge Bench of the Hon'ble Supreme Court considered the judgments of Whirlpool Corporation and Harbanslal Sahnia (Supra) and culled out the following principles in this regard: -

"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.

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.

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.

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.

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.

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."

(Emphasis added)

9. I proceed to examine whether the aforesaid principles laid down in the cases cited by the learned counsel for the petitioner are applicable to the facts of the present case.

10. It is recorded in the impugned cancellation order dated 12.10.2017 that the petitioner's fair price shop agreement was suspended by means of an order dated 15.04.2017 and the petitioner was directed to submit his explanation regarding the charges, along with the distribution register and stock register for the period of past six months.

11. When the petitioner did not submit his explanation within the time provided to him, a reminder notice dated 24.07.2017 was sent to him. It was tendered to the petitioner by supply inspector, Gaisdi on 25.07.2017 but the petitioner declined to receive the same. Thereafter, the notice was pasted on the house of the petitioner and its photograph was taken and put on the file along with a report of the Supply Inspector, Gaisdi.

12. The petitioner had filed Appeal No. 34 under Section 28(3) of The Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016, which was allowed and the matter was remanded by means of an order dated 29.08.2017 passed by the Deputy Commissioner (Food), Devi Patan Mandal, Gonda providing that a fresh order be passed within 15 days and the petitioner was directed to cooperate in the inquiry.

13. After remand of the matter, a final reminder dated 02.09.2017 was sent to the petitioner asking him to submit his explanation and requisite documents in furtherance of the earlier letter dated 24.07.2017. The reminder was sent through registered post and it was tendered to the petitioner by the Supply Inspector, Gaisdi by visiting the petitioner's house but the family members of the petitioner present there declined to accept the notice. Upon this, the supply inspector again pasted the notice upon the house of the petitioner, took its photograph and attached it to the file.

14. It has categorically been stated in para 7 of the counter affidavit that ins spite of giving repeated opportunities, the petitioner did not submit any reply / explanation or the records and this fact remains uncontroverted, as the petitioner has not filed any rejoinder affidavit. In view of the aforesaid factual position, the allegation of the petitioner that no opportunity of hearing was provided to him is not acceptable. It appears that adequate opportunity of hearing was provided to the petitioner but the petitioner deliberately failed to avail the same.

15. The learned counsel for the petitioner next submitted that the petitioner had filed Writ Petition No. 21310 (M/S) of 2017 challenging validity of the suspension order and the cancellation order has been passed during pendency of that Writ Petition.

16. While entertaining Writ Petition No. 21310 (M/S) of 2017, on 11.09.2017 this Court had passed an order directing the Standing Counsel to file counter affidavit in the matter. However, it was specifically provided in that order that the licensing authority may proceed in the matter in question in accordance with the law. Therefore, it appears that the licensing authority proceeded with the matter under directions of this Court contained in the order dated 11.09.2017 passed in Writ Petition No. 21310 (M/S) of 2017 and the order cannot be held to be bad in law on the ground that it has been passed during pendency of the writ petition.

17. The learned counsel for the petitioner lastly submitted that a copy of the inquiry report was not provided to him.

18. A notice was sent to the petitioner through registered post and the Supply Inspector himself repetitively went to the petitioner's house himself to serve a notice asking him to show cause and the petitioner declined to receive the notice. Had he appeared in response to the notice, a copy of the enquiry report could have been provided to him or he could have demanded the same. In view of this conduct of the petitioner in deliberately avoiding participation in the enquiry, he cannot complain of denial of a proper opportunity of hearing to him.

19. In these circumstances, the impugned order dated 12.10.2017 does not suffer from any such illegality as may warrant any interference by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. The writ petition lacks merit and the same is hereby dismissed.

(Subhash Vidyarthi J)

Order Date : 07.05.2024

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