Court No. - 32
Case :- WRIT - C No. - 23630 of 2021 Petitioner :- Ankita Devi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ajeet Srivastava Counsel for Respondent :- C.S.C.
Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Ajeet Srivastava, learned counsel for the petitioner and learned Standing Counsel for respondents State.
2. At the very outset, learned Standing Counsel has raised a preliminary objection that the order impugned dated 15.02.2021 is an appealable order under Section 56(1-A) of the Stamp Act and the writ petition against the order passed by Collector, Saharanpur is not maintainable.
3. In a recent judgment, Apex Court in case of Additional Commissioner of State Tax and Ors. Vs. M/s Commercial Steel Limited (Civil Appeal No. 5121 of 2021) on 03.09.2021 reiterated its earlier guidelines in relation to the rule of alternative remedy and had held that where there are statutory provisions and writ petition has not been filed for enforcement of any fundamental right or for violation of principle of natural justice or where vires is not under challenge, same cannot be entertained and matter has to be relegated for availing the statutory remedy, relevant para nos. 11 and 12 are extracted here as under;
"11. The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is:
(i) a breach of fundamental rights;
(ii) a violation of the principles of natural justice;
(iii) an excess of jurisdiction; or
(iv) a challenge to the vires of the statute or delegated legislation.
12. In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent."
4. In view of above, as the petitioner has an alternative remedy of filing an appeal under Section 56(1-A) of the Stamp Act, the writ petition is not maintainable and the same is dismissed.
5. However, in case petitioner files an appeal before the appellate authority within a period of one month from today, the appellate authority shall not go into the question of limitation and decide the same strictly in accordance with law.
Order Date :- 21.9.2021 V.S.Singh