By means of present writ petition, the petitioner has challenged the order dated 22.7.2009 passed by the District Magistrate, Lucknow thereby cancelling the arms licence of the petitioner. Sri Prahlad Maurya , learned Standing Counsel has raised a preliminary objection to the effect that against the impugned order , the petitioner has got a statutory remedy of appeal under Section 18 of the Arms Act,1959.
Learned counsel for the petitioner has not disputed the above said fact. There can be no quarrel that it is well established proposition of law if the statutory alternative remedy is available to the petitioner then writ petition filed by him is not maintainable under Article 226 of the Constitution of India as per the law laid down by Hon'ble Supreme Court in the case of Titaghur Paper Mills Company Limited and another Vs.State of Orissa and others ( 1983) 2 Supreme Court Cases 433 , wherein it was held that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute alone must be availed of. Under the scheme of the Orissa Sales Tax Act, there is a hierarchy of authorities for granting redress. The petitioners had an equally efficacious alternative remedy by way of an appeal to the Prescribed Authority under sub-Section(1) of Section 23, then a second appeal to the Tribunal under sub-section (3) (a) thereof, and thereafter in the event the petitioners get no relief, to have the case stated to the High Court under Section 24 of the Act. The Act provides for an adequate safeguard against an arbitrary or unjust assessment, such as right to prefer appeal under Section 23(1) and to apply for stay of recovery under clause
(a) of the second proviso to Section 13 (5) . Thus the Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under article 226.
In the case of Karnataka Chemical Industries and others Vs. Union of India and others (2000) 10 Supreme Court Cases 13 Hon'ble Supreme Court has held that when there is no challenge to the validity of any statutory provision, we see no reason as to why a writ petition should have been filed by passing the alternative remedy which is provided under the statute. On the short ground we dismiss this appeal, vacate the interim orders , direct the payment of the balance amount of duty along with interest @ 15% per annum with yearly rests. It will be open to the appellant to avail of such statutory remedy as may be available to it. If an appeal is filed within four weeks from today, the Department will take a lenient view in condoning the delay.
In the case of Central Coalfields Limited Vs. State of Jharkhand and others (2005)7 Supreme Court Cases 492, Hon'ble Supreme Court held that if there is statutory alternative remedy available to a person under an statute itself, in that case the writ petition should not be entertained under Article 226 of the Constitution of India and the petitioner is directed to avail the alternative statutory remedy. For the forgoing reasons, as the petitioner has got a statutory remedy of appeal , the present writ petition is dismissed on the same ground. However, in case the petitioner files an appeal before the appellate authority within a period of three weeks from today, the same shall be decided on merits and shall not be dismissed on the ground of limitation.
Order Date :- 4.2.2010 dk/