Madhya Pradesh High Court
Bharat Petroleum Corporation ... vs The State Of Madhya Pradesh on 17 June, 2021
Author: Prakash Shrivastava
1 WP-4074-2021
The High Court Of Madhya Pradesh
WP-4074-2021
(BHARAT PETROLEUM CORPORATION LIMITED SHRI PVGRA JAGANNADHA RAO Vs THE STATE OF
MADHYA PRADESH AND OTHERS)
5
Jabalpur, Dated : 17-06-2021
Heard through Video Conferencing.
Shri Rohit Jain, learned counsel for the petitioner.
Shri A.P. Singh, learned Dy. Advocate General for the respondent
Nos. 1 and 7/State.
Shri Arun Kumar Mishra, learned counsel for the respondent no.2.
Heard on I.A.No.2245/2021 which is an application filed by the
respondent no.2 for dismissal of the petition on the ground that the petitioner
has remedy of filing an appeal under Section 17 of the SARFAESI Act.
Submission of learned counsel for the respondent no.2 is that an
amendment has been made in Section 17 of the SARFAESI Act and by virtue
of Section 4-A inserted therein, the petitioner has a remedy of approaching
the DRT by way of an appeal against the order of District Magistrate and with
that amendment, now the position in law has changed. Therefore, the earlier
judgment will not apply. Hence, the petition should be dismissed on the
ground of availability of alternative remedy.
Learned counsel for the State has also supported the submission that
the alternate remedy of appeal is available and in this regard placed reliance
upon the judgment of this Court in the matter of Chief Manager &
Authorised Officer Vs. The District Magistrate and Ors. 2018 SCC
Online MP 519.
Learned counsel for the petitioner responding to this has submitted that
the petitioner is a lease holder of the land in question and the lease was for a
period of thirty years and which is to continue up to 2024.
Referring to Annexure P-4, he has submitted that even the bank was
aware of this fact and the respondent no.2/bank was in correspondence with
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the petitioner but in the application which was filed before the District
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Date: 2021.06.18 16:47:58 IST
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Magistrate, the factum of lease was not disclosed and it was also not
disclosed that the petitioner was in possession and the District Magistrate has
also not issued any notice to the petitioner while passing the impugned order
under Section 14 of the Act. In support of his submission about the right of
hearing before the District Magistrate, he has placed reliance upon the
judgment of Supreme Court in the case of Harshad Govardhan Sondagar
v. International Asset Reconstruction Pvt. Ltd (2014) 6 SCC 1, and
Bajarang Shyamsunder Agarwal vs Central Bank Of India (2019) 9
SCC 94.
Having heard learned counsel for the parties and on perusal of the
record, we are of the opinion that once the issue of violation of principles of
natural Justice is raised before this Court than the availability of the alternate
remedy in the fact of the present case cannot be a ground for relegating the
petitioner to the remedy of appeal specially when for adjudication of such an
issue of opportunity of hearing, no elaborate enquiry is required. The
Supreme Court in the matter of Commissioner Of Income Tax & Ors vs
Chhabil Dass Agarwal 2014 (1) SCC 603 has held as under:
"15. Thus, while it can be said that this Court has recognized
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
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 o f the principles of
natural justice, the proposition l a i d d o w n i n Thansingh
Nathmal case, Titagarh Paper Mills case and other similar
judgments that the High Court will not entertain a petition
under Article 226 of the Constitution i f 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 o f grievances, a writ petition
s h o u l d n o t b e e nte r ta i ne d i gno r i ng t h e statutory
dispensation."
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SAN Having regard to the above and considering the fact that the ground of
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Date: 2021.06.18 16:47:58 IST
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violation of principles of natural justice has been raised, we are of the opinion
that the prayer of the respondent no.2 for dismissal of petition on the ground
of availability of alternate remedy cannot be acceded to at this stage. Hence,
I.A.No.2245/2021 is rejected however with liberty to respondent to reagitate
this issue if he is able to satisfy the court that principle of natural justice was
duly complied with.
Learned counsel for the respondent no.2 prays for four weeks' time to
file the reply. He has further submitted that the respondent no.2 will not be
taking any action against the petitioner till 15.7.2021.
Let notices be issued to the other respondents on payment of process
fee within a period of three days.
List this matter on 15.7.2021.
(PRAKASH SHRIVASTAVA) (VIRENDER SINGH)
JUDGE JUDGE
P/-
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Digitally signed by MRS PREETI TIWARI
Date: 2021.06.18 16:47:58 IST
