AI Structured Summary
Not yet generated for this judgment
Judgment
S.K. Mishra, J.—Petitioner No. 1, in this Writ Petition, a limited Company, has prayed for lifting/removing the seal placed by the investigating agency on its crusher unit situated at Banspani & release the materials & documents seized by them in its favour. Petitioner No. 1 company has the license for processing, procuring, storing & selling iron ore lumps under the Orissa Minerals (Prevention of Theft Smuggling & illegal Mining & Regulation of Possession, Storage, Trading & Transportation) Rules, 2007 (hereinafter referred to as "the Orissa Mineral Rules, 2007" for brevity). Such license has been granted in its favour by the Deputy Director of Mines, Joda. On 9.9.2011 at about 4.00 P.M. during a surprise visit made by a Mobile Squad to the establishment belonging to Petitioner No. 1 company, an excess of 57.00 MT of iron ore lumps were allegedly found within the plant premises. Accordingly, on the basis of a written report submitted by one Sri Tareni Kumar Singh, Sr. Inspector of Mines from the office of the Deputy Director of Minds, Joda, inter alia, intimating the same to Joda P.S. an F.I.R. was registered against Petitioner No. 1 company vide Joda P.S. Case No. 148 dated 9.9.2011 corresponding to G.R. Case No. 473/2011. Thus, a case was registered for the alleged commission of offences under Sections 379, 411 & 34 of the Indian Penal Code read with Section 21 of the Mines & Minerals (Development & Regulation) Act, 1957, (hereinafter after referred to as "the Act" for brevity). It is further alleged in the said F.I.R. that there was shortage of 44.00 MT of sized iron ore. The F.I.R. goes to show that the aforesaid quantity of 57.00 MT have been procured by means of theft & shortage of 44.00 MT may be due to illegal Petitioner No. 1 company activities on the part of Petitioner No. 1 company.
Learned Counsel for the Petitioners submitted that the entire allegations against the Petitioner No. 1 company are motivated & have been alleged in order to harass & defame the company. Thereafter, the authorities put seal on the crusher unit of Petitioner No. 1 company. Petitioner No. 1 company has preferred an application u/s 482 of the Criminal Procedure Code, 1973 (hereinafter referred to as "the Code" for brevity) from initiation of the case against it. The same is pending & an interim order has been passed in favour of Petitioner No. 1 Company directing the Opp. Parties not to take any coercive action against it in the aforesaid case. Thereafter, Petitioner No. 1 company alleges that in spite of such an order, the authorities are not releasing the crusher unit in its favour by lifting/removing the seal. At the outset, it is contended by the Learned Counsel for the Petitioners that in view of the ratio decided in Surendra Kumar Agarwal V. State of Orissa & Ors. (2009) 44 OCR 232, the registration of the F.I.R. is illegal & therefore, any action taken in pursuant thereto is also illegal. In any case, the matter of initiation of an F.I.R. is already in active consideration of the Learned Single Judge in a proceeding u/s 482 of the Code & the same need not be decided in this Writ Petition.
Learned Addl. Government Advocate, on the other hand, submitted that in view of the existence of an alternative forum u/s 457 of the Code for release of the crusher unit in favour of Petitioner No. 1 company, this Writ Petition is not maintainable.
In this regard law is well settled that whenever there is an alternative forum, that forum should be exhausted before approaching this Court under Articles 226 & 227 of the Constitution of India.
The Supreme Court in Harbanslal Sahnia & anr v. Indian Oil Corpn. Ltd. & ors; AIR 2003 SC 2120 has held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is rule of discretion & not one of compulsion. In an appropriate case in spite of availability of 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.
Similar view has been taken in U.P. State Spining Co. Ltd. Vrs. R.S. Pandey & anr; 101 (2006) CLT 160 (SC), wherein the Supreme Court held that not exercising the power in case of availability of alternative remedy is a rule of self-imposed limitation. It is essentially a rule of policy, convenience & discretion & never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the High Court should ensure that he has made out a strong case of that there exist good grounds to invoke the extraordinary jurisdiction.
The Supreme Court, in an unreported case of Nivedita Sharma Vs. Cellular Operators Assn. of India & Ors; Civil Appeal No. 10706 of 2011, has examined the question of maintainability of a Writ Petition before the High-Court under Articles 226 & 227 of the Constitution in spite of existence of a statutory remedy of appeal available to the parties u/s 19 of the Consumer Protection Act, 1986. The Supreme Court held as follows:-
We have considered the respective arguments/submissions. There cannot be any dispute that the power of the High Courts to issue directions, orders or writs including writs in the nature of habeas corpus, certiorari, mandamus, quo warranto & prohibition under Article 226 of the Constitution is a basic feature of the Constitution a cannot be curtailed by parliamentary legislation L. Chandra Kumar Vs. Union of India and others, . However, it is One thing to say that in exercise of the power vested in it under Article 226 of the Constitution, the High Court can entertain a Writ Petition against any order passed by or action taken by the State and/or its agency/instrumentality or any public authority or order passed by a quasi-judicial body/authority, & it is an altogether different thing to say that each & every petition filed under Article 226 of the Constitution must be entertained by the High Court as a matter of course ignoring the fact that the aggrieved person has an effective alternative remedy. Rather, it is settled law that when a statutory forum is created by law for redressal of grievances, a Writ Petition should not be entertained ignoring the statutory dispensation.
Thus, the Supreme Court further held that the existence of alternative remedy is not a bar to entertain a Writ Petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the virus of the statute is under challenge. Holding thus, the Supreme Court has set aside the order passed by the Delhi High Court.
In Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, , it has been laid down that the jurisdiction of the High Court in entertaining a Writ Petition under Art. 226 of the Constitution in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. Thus, the Supreme Court has held that the High Court was not justified in dismissing the Writ Petition at the initial stage without examining the contention that the show cause notice issued to the Appellant was wholly without jurisdiction The Supreme Court has further held that in view of pendency of these proceedings in the High Court & specially in view of Section 107 of the Trade & Merchandise Marks Act, 1958, the Registrar could not legally issue any suo motu notice to the Appellant u/s 56(4) of the Act for cancellation of the Certificate of Registration/Renewal already granted. In view of Section 56(4), the Registrar has not jurisdiction to issue such a notice.
Having considered the submissions of the Learned Counsel for the Petitioners, we do not find that it is a Writ Petition for enforcement of any of the fundamental rights nor it is a case where the principles of natural justice have been violated. The orders impugned are not wholly without jurisdiction.
In that view of the matter, the Writ Petition is not entertainable. We do not want to go into the other controversies raised in the Writ Petition regarding initiation of a proceeding in view of the fact that a Criminal Misc. Case u/s 482 of the Code is pending before the Learned Single Judge. Thus, keeping in view the fact that there is an alternative forum of filing an application u/s 457 of the Code before the J.M.F.C., Barbil, this Writ Petition is not maintainable & the same is, accordingly, dismissed.
V. Gopala Gowda, C.J.
I agree.