Mushini Lakshmi Narayana Gaud vs The State Of Telangana And 4 Others
2022 Latest Caselaw 2326 Tel

     THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

                 WRIT PETITION No. 23320 OF 2022

O R D E R:

This Writ Petition is filed questioning the inaction of respondent

Nos.2 and 3 in taking action against the unofficial respondents for forging

the signatures of the petitioner, though the petitioner has not executed any

agreement of sale or Sadabainama, in respect of petitioner's open site

House No.R-24 (H.No.2-24), admeasuring 70.00 sq. yards, situated at

Katkur Village, Bachannapeta Mandal, Jangaon District, in spite of

written complaint dated 30.03.2020, as illegal and arbitrary.

2. Sri Shaik Jilani, learned counsel for the petitioner, submits that the

petitioner is the absolute owner and possessor of the subject property,

which he was succeeded from his forefathers. The subject property

belongs to all the family members including the petitioner's sisters and

brother. While so, respondent Nos.4 and 5, who are the sons of

petitioner's brother, forged the signature of the petitioner in respect of

subject property and they are making illegal construction taking undue

advantage of petitioner's vacant site. Earlier, the petitioner approached

this Court by filing W.P.No.13179 of 2022 seeking action against the

respondent police in not taking action on the complaint given by him on

24.12.2021. On 30.03.2022 the petitioner made a complaint to the

respondent police bringing to their notice that respondent Nos.4 and 5

have forged his signature and created agreement or Sadabainama, but no

tangible action is forthcoming from them. It is submitted that the duty of

the police officer is to register a case and carry out proper investigation

into the matter and ascertain the cause behind the complaint. Learned

counsel submits that the inaction of the respondent police is highly

arbitrary and illegal. Hence, the petitioner has come up before this Court

by filing a Writ Petition.

3. Learned Assistant Government Pleader for Home Sri S. Rama

Mohana Rao submits that he will get instructions in this matter and file a

detailed counter.

4. Though there are no fetters in entertaining a writ petition under

Article 226 of the Constitution of India, whenever a person complains of

violation of his fundamental right or statutory right, one of the self

imposed restraint is when there is statutorily engrafted adequate and

efficacious alternative remedy available to such person to redress his

grievance the court do not entertain the writ petition but relegate the party

to avail such remedy before invoking extraordinary jurisdiction of this

Court.

Bhimidipati Annapoorna Bhavani v. Land Acquisition Officer, Yeluru Reservoir Project, Peddapuram, East Godavari District, A.P. and others1,

5. The Court has recognised 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 of the principles of natural justice, the

proposition laid down in Thansingh Nathmal case [AIR 1964 SC 1419] ,

Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of

Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131] and other similar

judgments that the High Court will not entertain a petition under Article

226 of the Constitution if 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

2005(3) ALD 233(LB)

redressal of grievances, a writ petition should not be entertained ignoring

the statutory dispensation." (emphasis supplied)

Commissioner of Income Tax v. Chhabil Dass Agarwal2

6. Despite wide powers conferred by Article 226 of the Constitution,

while passing any order, the Courts must bear in mind certain self-

imposed limitations on the exercise of these constitutional powers. The

very plenitude of the power under the said articles requires great caution

in its exercise.

State of West Bengal v. Committee for Protection of Democratic Rights3

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, 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

(2014) 1 SCC 603

(2010) 3 SCC 571

of principles of natural justice or, (iii) where the orders or proceedings are

wholly without jurisdiction or the vires of an Act and is challenged.

Harbanslal Sahnia v. Indian Oil Corpn. Ltd.4

8. Generally, this Court is not entertaining the Writ Petitions filed

questioning the registration or non-registration of the complaint / FIR, as,

as rightly pointed out by the learned Assistant Government Pleader, the

Coordinate Bench of this Court in Writ Petition No. 38397 of 2019 and

batch, dated 08.03.2019 has categorically observed that in the case of non-

registering the complaint, the remedy for the affected person is to file a

private complaint.

9. The writ remedy is no doubt an extraordinary remedy and in every

case just because a case is made out on action / inaction of an authority

vested with power, the Writ court will not entertain the writ petition and

the affected party has to avail the remedy available under law. In

Whirlpool Corporation v. Registrar of Trade Marks, Mumbai5, the

Hon'ble Apex Court has observed that under Article 226 of the

Constitution, the High Court having regard to the facts and circumstances

has discretion to entertain or not to entertain a writ petition but the High

(2003) 2 Supreme Court Cases 107

(1998) 8 SCC 1

Court has imposed certain restrictions one of which is that if an effective

alternative remedy is available, the High court would not normally

exercise the 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.

10. In the light of the law laid down by this Court and the Apex Court

referred to supra, when there is a statutorily-engrafted adequate and

efficacious alternative remedy available to the person, who complains, to

redress his grievance, the Court do not entertain the writ petition but

relegate the party to avail such remedy before invoking extraordinary

jurisdiction of this Court. In this case, the effective alternative remedy

available to the petitioner is to file a private complaint under Section 200

Cr.P.C., which is an effective alternative remedy, but not a Writ Petition

invoking Article 226 of the Constitution of India. Therefore, this Court

finds no reason to entertain this Writ Petition.

11. The Writ Petition is, accordingly, disposed of giving liberty to the

petitioner to avail appropriate remedy available to him under law. There

shall be no order as to costs.

Miscellaneous applications, pending if any, shall stand

automatically closed.

__________________________ LALITHA KANNEGANTI, J Date: 06.06.2022

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