Ram Kumar Saini vs State Of Uttarakhand
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Uttarakhand High Court

Ram Kumar Saini vs State Of Uttarakhand on 21 February, 2024

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

 IN THE HIGH COURT OF UTTARAKHAND
             AT NAINITAL
                              Sri Justice Rakesh Thapliyal, J.

Writ Petition (MS) No. 338 of 2024

Ram Kumar Saini. ................Petitioner.

-Versus-

State of Uttarakhand
and others.                                                    .........Respondents.
Present:

Mr. Amar Murti Shukla, learned counsel for the petitioner. Mr. J.S. Bisht, learned Standing Counsel for the State.

Upon hearing the learned counsel, the court made following Order: (Per Mr. Rakesh Thapliyal, J.)

1. By the instant writ petition, petitioner is praying to issue a writ, order or direction in the nature of Certiorari quashing the impugned decision on agenda item no. 3 passed by respondent no. 4 dated 30.01.2023 (contained as Annexure No. 3 to this writ petition).

2. It is submitted by the learned counsel for the petitioner that end point of the route is altered by respondent no. 3 pursuant to the impugned decision, which is contrary to proviso to sub- Section 3 (ii) of Section 80 of the Motor Vehicle Act.

3. Mr. J.S. Bisht, learned Standing Counsel for the State submits that petitioner has alternative remedy in view of Section 90 of the Act by filing revision before the State Transport Appellate Tribunal since petitioner is an existing operator.

4. In response to this learned counsel for the petitioner has submitted that since the impugned decision is totally in violation of proviso to sub-Section 3 (ii) of Section 80 of the Motor Vehicle Act, therefore, alternative remedy will not come in the way. He

has placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 particularly on paragraph 14 and 15 of the judgment. Paragraph 14 and 15 are extracted hereinbelow:

"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."

5. Learned counsel for the petitioner has further placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of South Indian Bank Ltd. Vs. Naveen Mathew 2023 SCC Online SC 435 particularly in paragraph 16. Paragraph 16 of the said judgment is extracted hereinbelow:

"16. xxx

26. Following the dictum of this Court in Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1], in Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [(2003) 2 SCC 107], this Court noted that : (Harbanslal Sahnia case, SCC p. 110, para 7)

"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."

6. Learned counsel for the petitioner has further placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Commissioner of Income Tax Vs. Chhabil Dass Agarwal (2014) 1 SCC 603 particularly in paragraph 15 and 16. Paragraphs 15 and 16 of the said judgment are extracted hereinbelow:

"15. Thus, while it can be said that this 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 redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

16. In the instant case, the Act provides complete machinery for the assessment/reassessment of tax,

imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. v. State of Haryana [(1985) 3 SCC 267] this Court has noticed that if an appeal is from "Caesar to Caesar's wife" the existence of alternative remedy would be a mirage and an exercise in futility."

7. Learned counsel for the petitioner has further placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Pancham Chand and others Vs. State Himachal Pradesh (2008) 7 SCC 117 particularly in paragraphs 18, 19 and

20. Paragraphs 18, 19 and 20 of the said judgment are extracted hereinbelow:

"18. The Act is a self-contained code. All the authorities mentioned therein are statutory authorities. They are bound by the provisions of the Act. They must act within the four corners thereof. The State, although, has a general control but such control must be exercised strictly in terms of Article 162 of the Constitution of India. Having regard to the nature and the manner of the control specified therein, it may lay down a policy. Statutory authorities are bound to act in terms thereof, but per se the same does not authorise any Minister including the Chief Minister to act in derogation of the statutory provisions. The Constitution

of India does not envisage functioning of the Government through the Chief Minister alone. It speaks of a Council of Ministers. The duties or functions of the Council of Ministers are ordinarily governed by the provisions contained in the Rules of Business framed under Article 166 of the Constitution of India. All governmental orders must comply with the requirements of a statute as also the constitutional provisions. Our Constitution envisages a rule of law and not rule of men. It recognises that, howsoever high one may be, he is under law and the Constitution. All the constitutional functionaries must, therefore, function within the constitutional limits.

19. Apart from the fact that nothing has been placed on record to show that the Chief Minister in his capacity even as a member of the Cabinet was authorised to deal with the matter of transport in his official capacity, he had even otherwise absolutely no business to interfere with the functioning of the Regional Transport Authority. The Regional Transport Authority being a statutory body is bound to act strictly in terms of the provisions thereof. It cannot act in derogation of the powers conferred upon it. While acting as a statutory authority it must act having regard to the procedures laid down in the Act. It cannot bypass or ignore the same.

20. Factual matrix, as indicated hereinbefore, clearly goes to show that the fourth respondent filed the application before the Chief Minister straightaway. Office of the Chief Minister communicated the order of the Chief Minister, not once but twice. Respondent 2 acted thereupon. It advised the Regional Transport Authority to proceed, after obtaining a proper application from Respondent 4 in that

behalf. This itself goes to show that prior thereto no proper application was filed before the Regional Transport Authority. Such an interference on the part of any authority upon whom the Act does not confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional scheme. It interferes with the independent functioning of a quasi-judicial authority. A permit, if granted, confers a valuable right. An applicant must earn the same."

8. The law laid down by the Hon'ble Supreme Court in the case of Whirlpool Corporation is still hold a good law and in the case of Whirlpool Corporation the Hon'ble Supreme Court has clearly observed that alternative remedy would not operate as a bar if - (i) writ seeks enforcement of any fundamental rights (ii) there is violation of principles of natural justice (iii) the order or the proceedings are wholly without jurisdiction or the vires of Act is challenged. Therefore, after taking all the judgments into consideration, this Court is of the view that alternative remedy will not come in the way of the petitioner.

9. Issue notice to respondent no. 5 by registered post, acknowledgment due. Petitioner shall take steps within a week.

10. Let counter affidavit be filed by the respondents within four weeks. Thereafter, two weeks' time is granted to the petitioner to file rejoinder affidavit.

11. List on 10.04.2024.

__________________ Rakesh Thapliyal, J.

21.02.2024 SKS