Chattisgarh High Court
Prakash Jotwani @ Goldi vs State Of Chhattisgarh on 1 November, 2021
Page 1 of 16
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 325 of 2020
Reserved on : 27.08.2021
Delivered on : 01.11.2021
Prakash Jotwani @ Goldi, S/o Late Tirath Das Jotwani, Aged About 44
Years, R/o By Occupation Business and Contractor, R/o Ward No. 14,
Charama, District- U.B. Kanker (C.G.)
---- Petitioner
Versus
1. State of Chhattisgarh, through Secretary, Home Department,
Mantralaya Naya Raipur, District- Raipur (C.G.)
2. District Magistrate, District- Uttar Bastar Kanker (C.G.)
3. Superintendent of Police, District- Uttar Bastar Kanker (C.G.)
4. Station House Officer, Police Station- Charama, District- U.B.
Kanker (C.G.)
---- Respondents
For Petitioner : Mr. Parag Kotecha, Advocate.
For State/Respondents : Mr. Gurudev I. Sharan, Govt. Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. ORDER
1. The petitioner has filed the writ petition under Article 226 of the
Constitution of India for quashing the order dated 09.07.2020
passed by District Magistrate, Uttar Bastar, Kanker (C.G.) in
Misc. Criminal Case No. 01/2020 as also challenging rejection of
objection raised by the petitioner about maintainability of
proceeding under Chhattisgarh Rajya Suraksha Adhiniyam,
1990 (for short "the Adhiniyam, 1990").
2. The brief facts, as projected by the petitioner, are that the
petitioner is businessman, contractor & presently working as
Mandal President of Bhartiya Janta Party and due to political
influence of ruling party, the proceeding under the Adhiniyam,
1990 has been initiated against the petitioner.
3. Learned counsel for the petitioner would submit that a show
cause notice under Sections 3, 5 & 6 of the Adhiniyam, 1990,
has been issued by respondent No. 2/ District Magistrate, Uttar
Bastar Kanker on the recommendation of respondent No. 3/
Superintendent of Police, Uttar Bastar, Kanker for externment of
the petitioner from District- Kanker, wherein various criminal
cases have been mentioned against the petitioner. It has been
further contended by learned counsel for the petitioner that the
allegations levelled by the respondents against the petitioner are
totally false, baseless and on the basis of incomplete and
manipulated information supplied by respondent No. 3 to
respondent No. 2 and on political influence of the ruling party,
the show cause notice has been issued. The content of show
cause notice issued to the petitioner on 10.02.2020 (Annexure
P/1) is extracted below:-
"iqfyl v/kh{kd mRrj cLrj dakdsj ds i= [email protected]
@[email protected]&[email protected]@2020 fnukad 08-02-2020 ds vuqlkj
izfrosfnr fd;k x;k gS fd o"kZ 1996 ls yxkrkj yM+kbZ
>xM+k] ekjihV] tku ls ekjus dh /kedh ,oa 'kkldh;
deZpkfj;ksa dks ekjihV dj ng'kr iSnk djrk gS] vkids
fo:) dbZ vijkf/kd izdj.k ntZ gSa rFkk izfrca/kkRed
dk;Zokgh djus ds ckn Hkh vkids xfrfof/k;ksa esa dksbZ lq/kkj
ugha vk;k gSA bl rjg vkids mDr d`R;ksa ls 'kgj ds vke
ukxfjdksa ds lkekU; tu&thou ij izfrdwy izHkko iM+ jgk gS
vkids Mj ds dkj.k dksbZ Hkh vke O;fDr vkids fo:) xokgh
nsus ds fy, ?kcjkrs gSa] vkids yxkrkj vijkf/kd xfrfof/k;ksa
dks ns[krs gq, rRdky fu:) fd;k tkuk vfr&vko';d gS]
vkids Lora= jgus ls tulqj{kk o yksd O;oLFkk cuk;s j[kus
esa foijhr izHkko iM+ jgk gSA vkids vijkf/kd xfrfof/k;ksa esa
vadq'k yxkus rFkk vke tuekul ds fgr esa Nrrhlx<+ jkT;
lqj{kk vf/kfu;e 1990 dh /kkjk 3] 5] 6 ds varxZr ftyk cnj
dh dk;Zokgh djuk vfr&vko';d gksxkA "
4. The details of criminal cases registered against the petitioner are
given in table form, which were annexed with the show cause
notice, are as under:-
SN Crime/ Sections Result Remark
Ishtagasha No.
1 91/1996 341, 147, 148, Acquitted
149, 336, 427
IPC
2 93/1996 341, 147, 148, Acquitted
149, 337, 427
IPC
3 96/1996 341, 294, 147, Acquitted
148, 149, 336,
327 IPC
4 124/1997 363, 366, 34 IPC RI for one Challan filed
year
5 100/2002 294, 323, 506,
341 IPC & 3(1)(x)
SC/ST Act
6 204/2010 294, 506(B), 186 Challan filed
IPC
7 187/201 147, 148, 186, Challan filed
353, 427 IPC
8 35/2015 498, 323 IPC Challan filed
9 31/2020 365 IPC Under
Investigation
10 Ishtagasha No 107, 116(3) tk-QkS- Ishtagasha
18/1996 filed
11 Ishtagasha No 110 tk-QkS- Ishtagasha
12/2003 filed
12 Ishtagasha No 107, 116 (3) tk- Ishtagasha
137/2004 QkS- filed
13 Ishtagasha No 107, 116 (3) tk- Ishtagasha
262/2004 QkS- filed
14 Ishtagasha No 107, 116 (3) tk- Ishtagasha
207/2006 QkS- filed
15 Ishtagasha No 110 tk-QkS- Ishtagasha
16/2020 filed
5. Respondent No. 2 issued show cause notice to the petitioner to
submit his reply on 13.02.2020 and thereafter the matter was
adjourned as notice could not serve upon the petitioner. The
petitioner appeared before the District Magistrate on 14.02.2020
wherein the petitioner sought time to file reply. Again on
02.03.2020, 23.03.2020, 09.04.2020 & 11.05.2020, the petitioner
sought time. On 18.05.2020, the petitioner submitted preliminary
objection contending that the petitioner from his student life
since 1990, is involved in various social, religion and political
fields wherein he has reputation and also worked as Corporator
of Nagar Panchayat Charama. The criminal cases have been
registered on the basis of false and fabricated grounds to
destroy political, social and religion reputation of the petitioner,
wherein he has been acquitted.
6. Again to destroy his political reputation, a complaint has been
registered at Police Station- Charama because of the political
persons have initiated malifide proceeding and submit
Ishtagasha. In the Ishtagasha No. 91/1996, offence under
Sections 341, 147, 149, 336, 427 of IPC and Crime No. 93/1996
under Sections 341, 147, 148, 149, 337, 427 of IPC have been
mentioned wherein he was not involved in these cases, but still
the Ishtagasha has been submitted with malafide intention only
to harass and destroy the reputation of the petitioner. The
Ishtagasha is not based on any substantial material, therefore,
the proceeding initiated against the petitioner is nothing but an
abuse of process of law and prima facie no case is made against
him, therefore, the same is liable to be rejected. It is prayed that
the proceeding in pursuance of Ishtagasha submitted by Police
Station- Charama is not tenable and deserves to be rejected by
this Court.
7. The District Magistrate vide its order dated 09.07.2020 has
rejected the said preliminary objection by recording its finding as
under:-
"iqfyl v/kh{kd mRrj cLrj dakdsj ds izfrosnu vuqlkj
vukosnd dk vkijkf/kd d`R; o"kZ 1996 ls yxkrkj o"kZ
2020 Hkk-n-fo- ds rgr~ dqy 09 vijk/k ntZ gqvk gSA mDr
vijk/kksa esa ls vijk/k dzekad [email protected] /kkjk 294] 323]
506] 341 Hkk-n-fo- 3¼1½¼10½ ,[email protected],l-Vh- ,DV esa 01 o"kZ
dh dBksj dkjkokl dh ltk gksuk rFkk vijk/k Øekad
[email protected] /kkjk 294] 506 ¼ch½ 186 Hkk-n-fo- esa pkyku is'k
gksuk Fkkuk izHkkjh pkjkek us vukosnd ds vkijkf/kd fjdkMZ
esa crk;k gSA bl izdkj vukosnd dks nks"kfl) Bgjk;k
tkdj 01 o"kZ dk dkjkokl dh ltk gqvk gSA vukosnd ds
vf/koDrk dk izkjafHkd vkifRr ,oa rdZ esa ;g dguk fd
NRrhlx<+ jkT; lqj{kk vf/kfu;e 1990 dh /kkjk 6 esa
mYysf[kr vijk/k esa nks"kfl) ugha gqvk gS] ekU; djus ;ksX;
ugha gSA vukosnd ds fo:) Hkk-n-fo- ds dqy 09 vijk/k ntZ
gqvk gSA vukosnd ds vijkf/kd d`R; ls lqj{kk ,oa yksd
ifj'kkafr O;oLFkk cuk;s j[kus ij izfrdwy izHkko iM+ jgk gS
tks vf/kfu;e dh /kkjk 3 dh Js.kh esa vkrk gS rFkk ekjihV]
tku ls ekjus dh /kedh fn;s tkus ls vukosnd ds mDr
d`R; ls ekuo 'kjhj ;k laifRr dks [krjk cuk gqvk gS tks
vf/kfu;e dh /kkjk 5 dh Js.kh esa vkrk gSA bl izdkj
vukosnd ds vijkf/kd xfrfof/k;ksa esa dksbZ lq/kkj ugha gksus ls
iqfyl v/kh{kd mRrj cLrj dakdsj us vukosnd ds fo:)
NRrhlx<+ jkT; lqj{kk vf/kfu;e 1990 dh /kkjk 3] 5 ,oa 6
ds rgr~ ftyk cnj dh dk;Zokgh djus gsrq izfrosnu izLrqr
fd;k gSA QyLo:i izdj.k esa vukosnd }kjk izLrqr izkjafHkd
vkifRr [kkfjt fd;k tkrk gSA"
and fixed the case on 27.07.2020 for submission of written
statement.
8. Learned counsel for the petitioner would further submit that
preliminary objection has been mechanically rejected by the
District Magistrate without considering the provisions of the
Adhiniyam, 1990, therefore, the impugned order dated
09.07.2020 passed by the learned District Magistrate as well as
the present petition are liable to be quashed by this Court.
9. On the other hand, learned counsel for the State/ respondents
have filed their return contending that the Adhiniyam, 1990 has
provided complete mechanism for deciding the proceeding for
externment. Section 5 of the Adhiniyam, 1990 deals with
removal of persons about to commit offence, Section 6 deals
with removal of persons convicted of certain offences, Section 7
deals with period of operation of orders under Sections 4, 5 or 6
& Section 8 deal with hearing to be given before order under
Sections 3, 4, 5 or 6 is passed. It has been further contended
that Section 9 of the Adhiniyam, 1990 provides for filing the
appeal against the order of District Magistrate and without
availing the appropriate alternative remedy available under the
statute, the present petitioner has directly rushed before this
Court without filing the reply against the show cause notice
issued to him, therefore, the present petition is liable to be
dismissed at this stage.
10. It has been further contended that the objection raised by the
petitioner requires evidence by the prosecution and by the
respondent himself, unless the evidence is recorded, no order
can be passed and the objection raised by the petitioner is
misconceived with the facts of law and the same cannot be
decided by this Court at this stage. Hence, it is prayed that the
instant petition is liable to be dismissed by this Court.
11. I have heard learned counsel for the parties and perused the
records appended thereto with utmost satisfaction.
12. Before adverting to the facts of the case, it is expedient to
examine the relevant provisions of the Adhiniyam, 1990.
13. Section 5 of the Adhiniyam, 1990 deals with removal of persons
about to commit offence, Section 6 deals with removal of
persons convicted of certain offences, Section 7 deals with
period of operation of orders under Section 4, 5 or 6 & Section 8
deals with hearing to be given before order under Section 3, 4, 5
or 6 is passed.
14. The relevant provisions of Sections 5 to 10 of the Adhiniyam
1990 are extracted below:-
5. Removal of persons about to commit offence.
- Whenever it appears to the District Magistrate-
(a) that the movements or acts of any person are
causing or calculated to cause alarm, danger or
harm to person or property; or
(b) that there are reasonably grounds for believing
that such person is engaged or is about to be
engaged in the commission of an offence involving
force or violence or an offence punishable under
Chapter XII, XVI or XVII or under Section 506 or
509 of the Indian Penal Code, 1860 (45 of 1860) or
in the abatement of any such offence, and when in
the opinion of the District Magistrate witnesses are
not willing to come forward to give evidence in
public against such person by reason of
apprehension on their part as regards the safety of
their person or property; or
(c) that an outbreak of epidemic disease is likely to
result from the continued residence of an
immigrant;
the District Magistrate may, by an order in writing
duty served on him or by beat of drum or otherwise
as the District Magistrate thinks fit, direct such
person or immigrant-
(a) so as to conduct himself as shall seem
necessary in order to prevent violence and alarm or
the outbreak or spread of such disease; or
(b) to remove himself outside the district or my part
thereof or such area and any district or districts or
any part thereof, contiguous thereto by such route
within such time as the District Magistrate may
specify and not to enter or return to the said district
or part thereof or such area and such contiguous
districts, or part thereof, as the case may be, from
which he was directed to remove himself.
6. Removal of persons convicted of certain
offences. - If a person has been convicted-
(a) of an offence,-
(i) under Chapter XII, XVI or XVII or under Section
506 or 509 of the Indian Penal Code, 1860 (45 of
I860); or
(ii) under the Protection of Civil Rights Act, 1955 (22
of 1955); or
(b) twice, of an offence under Suppression of
Immoral Traffic in Women and Girls Act, 1956 (104
of 1956); or
(c) thrice, of an offence within a period of three
years under [Section 3 or 4 or 4-A] of the Public
Gambling Act, 1867 (3 of 1967), in its application to
the State of Madhya Pradesh;
the District Magistrate may, if he has reason to
believe that such person is likely against to engage
himself in the commission of an offence similar to
that for which he was convicted direct such person
by an order to remove himself outside the district or
part thereof or such area and any district or districts
or any part thereof, contiguous thereto by such
route and within such time as the District Magistrate
may order and not to enter or return to the District
or part thereof or such area and such contiguous
district or part thereof, as the case may be, from
which he was directed to remove himself.
Explanation :- For the purpose of this Section, the
expression, "an offence similar to that for which he
was convicted" means :-
(i) in the case of a person convicted of an offence
mentioned in clause (a), tin offence falling under
any of the Chapters or Sections of the Indian Penal
Code, 1860 (45 of 1860), mentioned in that clause
or an offence falling under the provisions of the Act
mentioned in sub-clause (ii) of that clause; and
(ii) in the case of a person convicted of an offence
mentioned in clauses (b) and (c), an offence falling
under the provisions of the Acts mentioned
respectively in the said clauses.
7. Period of operation of orders under Section 4,
5 or 6. - A direction made under Section 4, 5 or 6
not to enter any district or part thereof or such area
and any district or districts or any part thereof,
contiguous thereto, as the case may be, shall be for
such period as may be specified therein and shall in
no case exceed a period of one year from the dale
of which it was made.
8. Hearing to be given before order under
Section 3, 4, 5 or 6 is passed. - (1) Before an
order under Section 3, 4, 5 or 6 is passed against
any person, the District Magistrate shall inform the
person in writing of the general nature of the
material allegations against him and give him a
reasonable opportunity of tendering an explanation
regarding them.
(2) If such person makes an application for the
examination of any witness produced by him, the
District Magistrate shall grant such application and
examine such witnesses unless for reason to be
recorded in writing, the District Magistrate is of
opinion that such application is made for the
purpose of vexation or delay.
(3) Any written statement put in by such person
shall be filed with the record of the case and such
person shall be entitled to appear before the District
Magistrate by any legal practitioner for the purpose
of tendering his explanation and examining the
witnesses produced by him.
(4) The District Magistrate proceeding under sub-
section (1) may. for the purpose of securing the
attendance of any person against whom any order
is proposed to be made under Section 3, 4, 5 or 6
require such person to appear before him and to
execute a security bond with or without sureties for
such attendance during the inquiry.
(5) If the person fails to execute the security bond
as required or fails to appeal before the District
Magistrate during the inquiry, it shall be lawful for
the District Magistrate to proceed with the enquiry
ex parte and thereupon such order, as was
proposed to be passed against him, may be
passed.
9. Appeal. - (1) Any person aggrieved by an order
under Section 3, 4, 5 or 6 made by the District
Magistrate or any other officer specially empowered
under Section 13 may appeal to the State
Government within thirty days from the date of such
order. Such appeal shall be decided as far as
possible within a period of four months of the date
of filing of the appeal.
(2) An appeal under this section shall be preferred
in the form of a memorandum setting forth concisely
the grounds of objection to the order appealed
against, and shall be accompanied by a certified
copy thereof.
(3) On receipt of such appeal, the State
Government may after giving a reasonable
opportunity to the appellant to be heard either
personally or by a legal practitioner and after such
further inquiry, if any, as it may deem necessary
confirm, vary or rescind the order appealed
against :
Provided that the order appealed against shall
remain in operation pending the disposal of the
appeal, unless the State Government otherwise
directs.
(4) In calculating the period of thirty days provided
for an appeal under this Section, the time taken for
granting a certified copy of the order appealed
against shall be excluded.
10. Finality of orders passed for in certain
cases. - Any order passed under Section 3, 4, 5 or
6 shall not be called in question in any Court except
on the grounds-
(i) that the District Magistrate had not followed the
procedure laid down in sub-section (1) of Section 8;
or
(ii) that there was no material before the District
Magistrate upon which he could have based his
order; or
(iii) that the District Magistrate was not of opinion
that witnesses were unwilling to come forward to
give evidence in public against the person in
respect of whom an order was made under Section
5.
15. This Court while hearing the present petition has determined two
issues (1) whether the writ petition against show cause notice
under Rajya Suraksha Adhiniyam, 1990, is maintainable or not
where competency and jurisdiction of the authority to issue show
cause notice is not in dispute ? (2) whether the preliminary
objection which is mixed issues of law and facts can be decided
without recording of evidence ?
16. If we examine the scheme of the Adhiniyam, 1990, the District
Magistrate has power to make restriction order and he has been
empowered to dispersal of gangs and bodies of persons, who
are causing danger for the District. Thus, the District Magistrate
is the authority, who can initiate proceeding under Sections 3, 4,
5 & 6. The District Magistrate being competent authority has
issued show cause notice to the petitioner, therefore, authority
and competency of District Magistrate, is not in dispute. Thus, in
such circumstances, writ petition challenging the show cause
notice, is not maintainable.
17. Hon'ble the Supreme Court in Union of India & another Vs.
Kunisetty Satyanarayana1, has held as under:-
"13. It is well settled by a series of decisions of this
Court that ordinarily no writ lies against a charge
sheet or show-cause notice vide Executive
Engineer, Bihar State Housing Board vs. Ramdesh
Kumar Singh and others JT 1995 (8) SC 331,
Special Director and another vs. Mohd. Ghulam
Ghouse and another AIR 2004 SC 1467, Ulagappa
and others vs. Divisional Commissioner, Mysore
and others 2001(10) SCC 639, State of U.P. vs.
Brahm Datt Sharma and another AIR 1987 SC 943
etc.
14. The reason why ordinarily a writ petition should
not be entertained against a mere show-cause
notice or charge-sheet is that at that stage the writ
petition may be held to be premature. A mere
charge-sheet or show-cause notice does not give
rise to any cause of action, because it does not
amount to an adverse order which affects the rights
of any party unless the same has been issued by a
person having no jurisdiction to do so. It is quite
possible that after considering the reply to the
show-cause notice or after holding an enquiry the
authority concerned may drop the proceedings
and/or hold that the charges are not established. It
is well settled that a writ lies when some right of
any party is infringed. A mere show-cause notice or
charge-sheet does not infringe the right of any one.
It is only when a final order imposing some
punishment or otherwise adversely affecting a party
is passed, that the said party can be said to have
any grievance.
15. Writ jurisdiction is discretionary jurisdiction and
hence such discretion under Article 226 should not
ordinarily be exercised by quashing a show-cause
1 (2006) 12 SCC 28
notice or charge sheet."
18. Hon'ble the Supreme Court in Commissioner of Income Tax,
Gujarat Vs. Vijaybhai N. Chandrani2, has held as under:-
"13. We are fortified by the decision of this Court in
Indo Asahi Glass Co. Ltd. v. ITO, (2002) 10 SCC
444, wherein the assessee had approached this
Court against the judgment and order of the High
Court which had dismissed the Writ Petition filed by
the assessee wherein challenge was made to the
show cause notice issued by the Assessing
Authority on the ground that alternative remedy
was available to the assessee. This Court
concurred with the findings and conclusions
reached by the High Court and dismissed the said
appeal with the following observations:
"5. This and the other facts cannot be taken
up for consideration by this Court for the first
time. In our opinion, the High Court was right
in coming to the conclusion that it is
appropriate for the appellants to file a reply to
the show-cause notice and take whatever
defence is open to them."
14. In the present case, the assessee has
invoked the Writ jurisdiction of the High Court
at the first instance without first exhausting
the alternate remedies provided under the
Act. In our considered opinion, at the said
stage of proceedings, the High Court ought
not have entertained the Writ Petition and
instead should have directed the assessee to
file reply to the said notices and upon receipt
of a decision from the Assessing Authority, if
for any reason it is aggrieved by the said
decision, to question the same before the
forum provided under the Act."
19. The writ petition against the show cause notice is not
maintainable in view of abovestated legal position. Now the point
required to be determined by this Court is whether the
preliminary objection which is mixed issues of law and facts can
be decided without recording of evidence ?
20. From bare perusal of the relevant provisions of the Adhiniyam,
1990, the proceedings under the Adhiniyam, 1990 are preventive
in nature and the order of externment cannot be construed to be
2 (2013) 14 SCC 661
an order imposing punishment. The said Adhiniyam, 1990 as is
clear, has been enacted to provide for security of the State,
maintenance of public order and certain other matters connected
therewith. The provisions are intended for taking preventive
actions to counteract activities of anti-social elements and the
Adhiniyam confers on the Government with power to take
appropriate action so that peace and tranquility is not disturbed
and one manner of maintaining peace and tranquility is by
removal of anti-social elements and restriction of their activities.
The Adhiniyam arms the Government with power to make a
restriction order and appropriate orders dealing with dispersal of
anti-social elements and previous convicts and removal of
persons about to commit offences as also removal of persons
convicted of certain offences for which appropriate actions may
be initiated. The action under this provision is not to punish, but
to prevent certain actions which may be prejudicial to the peace
and tranquility in the community. Though, it is no doubt true that
to some extent the order of externment affects the right to
movement of a person (within a certain area) against whom an
order is passed but then this is preventive and not punitive.
Indeed, a citizen has a right to move about freely throughout the
territory of India, but this right is not wholly absolute and the
State has the power to impose reasonable restrictions on such
movement either in the interest of the general public or for the
protection of interest of any Scheduled Tribe. In the case at
hand, the restriction in so far as its prohibits the petitioner's entry
in certain specified districts may be complete, but it cannot be
said that the order amounts to a total prohibition of the
fundamental right of the petitioner guaranteed under Article
19(1)(d) of the Constitution of India. The action of restriction is
with the object of maintaining peace and tranquility and the
action is taken against the person only after giving him a due
opportunity of hearing. It means the Superintendent of Police
has to place entire material with regard to the antecedent of
petitioner and thereafter, an opportunity to rebut the allegations
made against the petitioner has to be given. It means,
opportunity to lead evidence to both the parties, have been given
to substantiate their respective stand. Thus, it requires evidence
of both the sides, therefore, the objection raised by the
petitioner, which is mixed question of facts and law cannot be
decided as preliminary issue without recording of evidence.
Even otherwise, it has been well settled legal position that the
tribunal/ authorities should make endeavor to decide the issue
completely and piecemeal decision over the issue has been
deprecated by Hon'ble the Supreme Court.
21. Hon'ble the Supreme Court in Ramesh Chandra Sankla &
others Vs. Vikram Cement & others3, has held as under:-
"72. It was also submitted that this Court has held
that statutory Tribunals must decide all issues
raised by the parties. This is particularly true to
industrial disputes. Strong reliance was placed on
D.P. Maheshwari v. Delhi Administration, (1983) 4
SCC 293. Dealing with a similar argument, this
Court said:
"1........There was a time when it was thought
prudent and wise policy to decide preliminary
issues first. But the time appears to have
arrived for a reversal of that policy. We think it
is better that tribunals, particularly those
entrusted with the task of adjudicating labour
disputes Where delay may lead to misery and
jeopardise industrial peace, should decide all
issues in dispute at the same time without
trying some of them as preliminary issues.
Nor should High Courts in the exercise of
their jurisdiction under Article 226 of the
Constitution stop proceedings before a
Tribunal so that a preliminary issue may be
decided by them. Neither the jurisdiction of
the High Court under Article 226 of the
Constitution nor the jurisdiction of this Court
under Article 136 may be allowed to be
exploited by those who can well afford to wait
to the detriment of those who can ill afford to
wait by dragging the latter from Court to Court
for adjudication of peripheral issues, avoiding
decision on issues more vital to them. Article
226 and Article 136 are not meant to be used
3 (2008) 14 SCC 58
to break the resistance of workmen in this
fashion. Tribunals and Courts who are
requested to decide preliminary questions
must therefore ask them selves whether such
threshold part-adjudication is really necessary
and whether it will not lead to other woeful
consequences. After all tribunals like
Industrial Tribunals are constituted to decide
expeditiously special kinds of disputes and
their jurisdiction to so decide is not to be
stifled by all manner of preliminary objections
journeyings up and down. It is also worthwhile
remembering that the nature of the
jurisdiction under Article 226 is supervisory
and not appellate while that under Article 136
is primarily supervisory but the Court may
exercise all necessary appellate powers to do
substantial justice. In the exercise of such
jurisdiction neither the High Court nor this
Court is required to be too astute to interfere
with the exercise of jurisdiction by special
tribunals at interlocutory stages and on
preliminary issues".
(emphasis supplied)
73. Reference was also made to S.K. Verma v.
Mahesh Chandra & Anr., (1983) 4 SCC 214. In that
case, this Court commented that there appears to
be three preliminary objections which have become
quite the fashion to be raised by all employees.
Firstly, there is no industry. Secondly, there is no
industrial dispute. Thirdly, the workman is `no
workman'.
74. The attention of the Court was also invited to
National Council for Cement & Building Materials v.
State of Haryana, (1996) 3 SCC 306, wherein the
Court deprecated the practice of the management
to raise preliminary issues with a view to delay
adjudication of industrial disputes.
75. In our considered opinion, in the present case,
it cannot be said that the Courts below have
committed any error of jurisdiction in not deciding
the issue as to the maintainability of claim-petitions
as preliminary issue. It is well settled that generally,
all issues arising in a suit or proceeding should be
tried together and a judgment should be
pronounced on those issues. Before more than
hundred years, the Privy Council in Tarakant v.
Puddomoney, (1866) 10 MIA 476, favoured this
approach. Speaking for the Judicial Committee,
Lord Turner stated:
".......The Courts below, in appealable cases,
by forbearing from deciding on all the issues
joined, not infrequently oblige this Committee
to recommend that a cause be remanded
which might otherwise be finally decided on
appeal. This is certainly a serious evil to the
parties litigant, as it may involve the expense
of a second appeal as well as that of another
hearing below. It is much to be desired,
therefore, that in appealable cases the
Courts below should, as far as may be
practicable, pronounce their opinions on all
the important points".
(emphasis supplied)
The above principle has been consistently
followed.
76. This Court dealing with the provisions of Order
XIV Rule 2 (prior to the amendment Act of 1976), in
Major S.S. Khanna v. Brigadiar F.J. Dillion, (1964) 4
SCR 409, stated;
"18......Under Order 14 Rule 2, Code of Civil
Procedure, where issues both of law and of
fact arise in the same suit, and the Court is
of opinion that the case or any part thereof
may be disposed of on the issues of law
only, it shall try those issues first, and for that
purpose may, if it thinks fit, postpone the
settlement of the issues of fact until after the
issues of law have been determined. The
jurisdiction to try issues of law apart from the
issues of fact may be exercised only where
in the opinion of the Court the whole suit may
be disposed of on the issues of law alone,
but the Code confers no jurisdiction upon the
Court to try a suit on mixed issues of law and
fact as preliminary issues. Normally all the
issues in a suit should be tried by the Court;
not to do so, especially when the decision on
issues even of law depend upon the decision
of issues of fact, would result in a lop-sided
trial of the suit".
(emphasis supplied)
77. The Law Commission also considered the
question and did not favour the tendency of
deciding some issues as preliminary issues.
Dealing with Rule 2 of Order XIV (before the
amendment), the Commission stated:
"This Rule has led to one difficulty. Where a
case can be disposed of on a preliminary
point (issue) of law, often the courts do not
inquire into the merits, with the result that
when, on an appeal against the finding on the
preliminary issue the decision of the Court on
that issue is reversed, the case has to be
remanded to the Court of first instance for
trial on the other issues. This causes delay. It
is considered that this delay should be
eliminated, by providing that a court must
give judgment on all issues, excepting, of
course, where the Court finds that it has no
jurisdiction or where the suit is barred by any
law for the time being in force"."
(emphasis supplied)
22. From bare perusal of contents of the application, it is clear that
some disputed facts are involved in the averments, which cannot
be decided without recording of the evidence, therefore, in view
of law laid down by Hon'ble the Supreme Court, the preliminary
objection, which requires evidence for determination, cannot be
decided as preliminary issue and it can be decided along with all
the issue raised in the proceedings.
23. Thus, from the abovestated legal proposition, it is quite clear that
the authority District Magistrate, who has issued the show cause
notice to the petitioner has jurisdiction and competency, which
cannot be quashed by this Court at this juncture and the
objection has been rightly rejected by the District Magistrate, as
it requires evidence for determination, therefore, there is no
ground made out for interference by this Court at this juncture.
24. However, petitioner is directed to raise all the objections before
the authorities and in turn, the authorities shall finally decide the
issue raised by the petitioner after recording of evidence, in
accordance with law within a period of six months from the date
of receipt of copy of this order.
25. In view of the above, the instant petition is liable to be and is
hereby dismissed. No order as to cost.
Sd-
(Narendra Kumar Vyas)
Judge
Arun
