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Judgment
Caveat No. 5345/2018
Heard learned counsel for the caveator.
Caveat stands discharged.
OWP No. 253/2019, IA No. 01/2019
Heard learned counsel for the petitioner as well as for the caveator-respondent No. 1.
A bare perusal of the petition reveals that petitioner has prayed for invoking extra ordinary jurisdiction under Article 226 of the Constitution of India read with Section 103 of the State Constitution.
The case of the petitioner is that he has purchase a Stone Crusher with the name and style of M/s Honey Stone Crusher situated at Jlaki (Khad Samba) from the respondent no.2-Anita Sambyal by way of Agreement to Sell dated 3rd of March, 2018 and thereafter same was in his possession and he was using the same as per his need and requirement till the possession of the same was taken by respondent no. 1-State Finance Corporation, Jammu. It is stated that the petitioner has paid an amount to the tune of Rs.20.00 lacs as first installment and later on has paid Rs. 10.00 lacs also and that as per the terms and conditions of the agreement the respondent no. 2 was under an obligation to execute the sale deed before the competent court of law. It is stated that the petitioner many a times approached to the respondent No. 2 and asked her to execute the sale deed and get the balance amount as promised, but she has not execute the sale deed till date.
The grievance of the petitioner is that he came to know that the respondent no. 2 has taken the loan facility from the State Financial Corporation by mortgaging the above said property and the amount was not repaid. It is claimed that the said fact came to the knowledge of the petitioner when the employees of respondent no.1 along with Police officials came on the site and told the petitioner that the respondent no. 2 has taken loan facility from State Financial Corporation by mortgaging the above said property and took the respondent No.1-State Finance Corporation possession of the property in question.
Learned counsel for the petitioner contends that the respondent no.
2 has committed fraud and played mischief with the petitioner by concealing the fact that she has taken loan from the State Financial Corporation by mortgaging the property in question. Thereafter, it came to the knowledge of the petitioner that the respondent no. 2 was trying to sell the above said property to third person and that third person has deposited the loan amount taken by the respondent No. 2 by mortgaging the above said property in the State Finance Corporation and therefore tried to create third party interest which constrained the petitioner to file a suit titled as "Sheetanshu Bargotra V/s Anita Sambyal &Anr" and the court below upon consideration directed both the parties to maintain status quo on spot and the same is pending before the court of learned Munsiff, Samba.
Mr. M. A. Bhat, learned counsel for the respondent No. 1, has brought on record a copy of the order dated 30.01.2019 passed by a Co-ordinate Bench of this Court in OWP No. 94/2019 (IA No. 01/2019) filed by respondent No. 2-Anita Sambyal titled M/s Honey Stone Crusher vs. State of J&K and anr, wherein auction process has been stayed.
In the facts as projected, it is admitted by the petitioner that he has purchased the stone crusher in question from respondent No. 2 and he was kept unaware by the said respondent about the loan facility availed by her from respondent No. 1- State Finance Corporation. However, the petitioner herein has not pleaded as to what right he has available against respondent No. 1- State Finance Corporation or what obligation the State Finance Corporation have viz-a-viz petitioner herein. Nonetheless the same relief has been claimed for commanding the respondent No. 1 not to release the stone crusher M/s Honey Stone Cursher in favour of respondent Nos. 2 and 3.
It has to be noted with clarity that for issuance of a mandamus, the petitioner has to plead and to satisfy the court he being vested with a right of which enforcement is being sought and the other side is under an obligation to act. It is also to be underlined that before approaching the court any petitioner(s) should, in compliance with a well-known rule of practice, ordinarily, first call upon the authority concerned to discharge its legal obligation. It would be advantageous to quote Para 42 of the judgment rendered in the case State of Haryana & anr. Vs. Chanan Mal, AIR 1976 SC 1654:-
"...any petitioner who applies for a writ or order in the nature of a mandamus should, in compliance with a well-known rule of practice, ordinarily, first call upon the authority concerned to discharge its legal obligation and show that it has refused or neglected to carry it out within a reasonable time before applying to a court for such an order even where the alleged obligation is established."
Though the Constitution does not place any restriction on the power of High court to grant of an appropriate writ or direction but it is well known that as a matter of prudence and propriety, judicial decisions have evolved certain restrictions over a period of years, taking into consideration rights pleaded to have been infringed or threatened to be infringed. The power of High Court under Section 103 of Constitution of J&K is not akin to that of a regular civil court which has a duty to ask the parties to lead evidence on various questions of fact and to appreciate it thereafter and not even that of a Court of appeal or revision. Admittedly, High Court also does not exercise jurisdiction under Article 226 for determination of questions which demand an elaborate examination of evidence to establish a right. Similarly, when it is open to the aggrieved person to move any appropriate Tribunal or Court or to exhaust the remedy in terms of any statute, the High Court has to hesitant in exercising writ jurisdiction.
The Hon'ble Apex Court in a case reported in 2014 (1) SCC 603, Commissioner of Income Tax and ors vs. Chhabil Dass Agarwal, has deprecated the practice of entertaining the writ petition under Article 226 of the Constitution of India when an equally efficacious alternate remedy was available to the assesse therein. Their Lordships in the said case have observed as under:-
"In the instant case, the only question which arises for our consideration and decision is whether the High Court was justified in interfering with the order passed by the assessing authority under Section 148 of the Act in exercise of its jurisdiction under Article 226 when an equally efficacious alternate remedy was available to the assessee under the Act.
Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499).
The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882 State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted.
In Nivedita Sharma vs. Cellular Operators Assn. of India, (2011) 14 SCC 337, this Court has held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows:
"12. In Thansingh Nathmal v. Supdt. of Taxes, AIR 1964 SC 1419 this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7).
"7. ... The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up."
The petitioner herein has claimed relief of mandamus for commanding the respondent No. 1 not to release the Stone Crusher M/s Honey Stone Crusher situated at Jlaki (Khad Samba). There is nothing on record or otherwise brought to the notice of the Court from which inference can be taken that the petitioner has approached respondent No. 1-State Finance Corporation for redressal of his grievances of which they took no notice.
Similarly, material on record also (as stated supra) does not suggest existence of any right with the petitioner and corresponding obligation on the respondent No. 1- State Finance Corporation which the Court at this stage would consider and make it base for entertaining the petition subsequently, existing scope for grant of final relief.
In the light of what has been stated above, I am of the opinion that the petitioner herein has not been able to make out a case for admissions and consequently for consideration of the petition for grant of reliefs claimed.. For this, the petition of the petitioner entails dismissal and is, accordingly, dismissed, in limini.