# Ghaziabad Development Authority Through Its V.C. Ghaziabad v. R.C.Saxena and others

- **Citation:** (2011) 1 ILRA 442
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-13
- **Bench:** Shri Kant Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ghaziabad-development-authority-through-its-v-c-ghaziabad-v-r-c-saxena-and-41874
- **Pages:** 5

## Headnote

Constitution
of
India-Article
226Alternative
Remedy-order
passed
by
State consumer Forum under Section 17
(1) (b) of consumer protection Act-by
exercising
revisional
power-second
revision
before
National
Forum
maintainable on joint reading of Section
19 and 21 of the Act-High Court already
over burdened with large pendency of
1 All Ghaziabad Development Authority V. R.C. Saxenaand others
443
cases in view of Division Bench Case Dr.
Manvendra Mishra-High Court refused to
exercise its direction.

Held: Para 14

As already discussed, the Act is a
complete code in regard to redressal of
grievances (complaints) of the consumer
and also in regard to appeal and revision
against the order passed by the State
Commission and other authorities, and
as
such
the
extra
ordinary
writ
jurisdiction under Article 226 of the
Constitution
of
India,
which
is
a
discretionary jurisdiction, should not be
invoked in such matters.
Case law discussed:
(2005) 6 Supreme Court Cases 499; (2003) 2
SCC 107; (2004) 4 Supreme Court Cases 268;
(2006) 5 S.C.C. 469; (2000) 1 UPLBEC 702;
2009 (2) ACR 2349

## Text

442 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
order dated 18.03.2011 passed by the
opposite party no.2.

It is contended on behalf of the
petitioner that once the appeal preferred by
the petitioner against the cancellation of his
fair price shop license had been admitted by
the respondent no.1 and an interim order
was passed in favour of the petitioner
staying the operation and implementation of
the impugned order dated 06.01.2011, the
opposite party no.2 travelled beyond his
jurisdiction in attaching the card-holders of
the petitioner's shop with some other shop
merely on the ground that the interim order
passed by the respondent no.1 was not
extended on 23.02.2011 due to nonavailability of respondent no.1.

7. Learned standing counsel appearing
for
the
opposite
parties
made
his
submissions in support of the impugned
order.

8. After having examined the
submissions made by the counsel for the
parties and perused the impugned order as
well as other relevant records, I find that the
submissions made by the learned counsel
for the petitioner have force and the same
are liable to be accepted.

9. Once, the Appellate Authority had
passed an interim order in the appeal
preferred by the petitioner against the order
of respondent no.2 by which he had
cancelled the petitioner's fair price shop
license, staying the implementation and
operation of the order passed by the
opposite party no.2 and the stay order could
not be extended not on account of any fault
on behalf of the petitioner but due to nonavailability of the respondent no.1 on the
date fixed, it was incumbent upon the
respondent no.2 to have given a reasonable
opportunity to the petitioner to get the
interim order extended before proceeding to
attach the card-holders of his fair price shop
with some other shop.

10. In my opinion the impugned order
cannot be sustained and is liable to be set
aside.

11. The writ petition is allowed. The
order dated 18.03.2011 passed by the
opposite party no.2 is set aside.

12. However, respondent no.1 is
directed to decide the appeal No. 80-03 in
accordance with law within a period of one
month from the date a certified copy of this
order is produced before him. Till the
petitioner's appeal is decided, the interim
order dated 12.01.2011 passed by the
respondent no.1 shall remain in force.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.04.2011

BEFORE
THE HON'BLE SHRI KANT TRIPATHI,J.

Misc. Single No. - 2191 of 2011

Ghaziabad
Development
Authority
Through Its V.C. Ghaziabad ...Petitioner
Versus
R.C.Saxena and others ...Respondent

Counsel for the Petitioner :
Arvind Kumar

Constitution
of
India-Article
226Alternative
Remedy-order
passed
by
State consumer Forum under Section 17
(1) (b) of consumer protection Act-by
exercising
revisional
power-second
revision
before
National
Forum
maintainable on joint reading of Section
19 and 21 of the Act-High Court already
over burdened with large pendency of
1 All Ghaziabad Development Authority V. R.C. Saxenaand others
443
cases in view of Division Bench Case Dr.
Manvendra Mishra-High Court refused to
exercise its direction.

Held: Para 14

As already discussed, the Act is a
complete code in regard to redressal of
grievances (complaints) of the consumer
and also in regard to appeal and revision
against the order passed by the State
Commission and other authorities, and
as
such
the
extra
ordinary
writ
jurisdiction under Article 226 of the
Constitution
of
India,
which
is
a
discretionary jurisdiction, should not be
invoked in such matters.
Case law discussed:
(2005) 6 Supreme Court Cases 499; (2003) 2
SCC 107; (2004) 4 Supreme Court Cases 268;
(2006) 5 S.C.C. 469; (2000) 1 UPLBEC 702;
2009 (2) ACR 2349

(Delivered by Hon'ble Shri Kant Tripathi,J. )

1. Heard learned counsel for the
petitioner and perused the record.

The learned counsel for petitioner
submitted that the instant writ petition has
been filed under Article 226 of the
Constitution of India for quashing the order
dated 9.8.2010 passed by the Uttar Pradesh
Consumer Disputes Redressal Commission
(hereinafter referred to as the 'State
Commission') in revision no.109 of 2006,
whereby the State Commission dismissed
the petitioner's revision and confirmed the
order dated 28.4.2006 of the District Forum,
Ghaziabad. The learned counsel for the
petitioner further submitted that the State
Commission has passed the aforesaid order
in exercise of its revisional jurisdiction
under section 17(1)(b) of The Consumer
Protection Act, 1986 (hereinafter referred to
as 'the Act'), therefore, the order so passed is
not
appealable
before
the
National
Consumer Disputes Redressal Commission
(hereinafter referred to as the 'National
Commission'). According to section 19 of
the Act only an order passed under sub
clause (i) of clause (a) of section 17 of the
Act is appealable before the National
Commission, therefore, the instant writ
petition
under
Article
226
of
the
Constitution of India is maintainable.

2. The Consumer Protection Act, 1986
has been enacted to provide for better
protection of the interests of consumers and
for that purpose to make provision for the
establishment of consumer councils and
other authorities for the settlement of
consumers'
disputes
and
for
matters
connected
therewith.
The
Act
has
provisions for constitution of District
Forum, State Commission and National
Commission, respectively, at the District
level, State level and the National level for
redressal of the grievances (complaints) of
the consumer.

3. The National Commission has
power of revision and that power has been
very specifically conferred on the National
Commission under section 21 (b) of the
Act. Moreso, section 21 (a) (ii) of the Act
has conferred jurisdiction on the National
Commission to entertain appeals against the
orders of any State Commission but there is
no specification as to which of the orders of
the State Commission is appealable under
section 21 (1)(a) of the Act. Therefore, the
provisions of section 21 (a) (ii) of the Act
have to be read alongwith the provisions of
section 19 of the Act. As such the orders
passed by the State Commission in exercise
of original jurisdiction under section 17 (1)
(a) (i) of the Act is appealable before the
National Commission. If the provisions of
section 21 (a)(ii) of the Act is read in
isolation, each and every order passed by
the State Commission is appealable before
444 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
the National Commission. In fact section 21
of the Act deals with the jurisdiction of the
National Commission which confers on it
not only the original jurisdiction of value of
certain amount but also deals with the
jurisdiction to entertain appeal against the
order of the State Commission and also to
exercise revisional jurisdiction. Whereas
section 19 of the Act provides as to which
order
of
the
State
Commission
is
appealable, therefore, sections 19 and 21 of
the Act have to be read together to decide
the question as to whether a particular order
is appealable or not.

4. The impugned order dated 9.8.2010
has been passed by the State Commission in
exercise of revisional jurisdiction and there
is no bar of second revision. As such the
order passed by the State Commission in
exercise of revisional jurisdiction can very
well be subjected to revisional jurisdiction
of the National Commission under section
21 (b) of the Act.

5. In view of the aforesaid, the
petitioner has an appropriate alternative
efficacious remedy by way of filing a
revision under section 21 (b) of the Act
against the impugned order dated 9.8.2010
(Annexure 1), therefore, it does not appear
to be just and expedient to exercise extra
ordinary writ jurisdiction under Article 226
of the Constitution of India.

6. The Supreme Court has almost
settled
the
legal
position
regarding
maintainability of writ petition under
Article 226 of the Constitution of India in a
case where alternative remedy is available
to the petitioner. Some of the important
cases are being referred to hereinbelow.

7. In Whirlpool Corporation vs.
Registrar of Trade Marks and others, AIR
1999 SC 22, the Supreme Court has held
that under Article 226 of the Constitution,
the High Court, having regard to the facts of
the case, has a discretion 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.

8. A similar view has been expressed
in the case of State of H.P. and others vs.
Gujrat Ambuja Cement Ltd. and another
(2005) 6 Supreme Court Cases 499, in
which the Supreme Court observed after
relying on few important earlier decisions
that except for a period when Article 226
was amended by the Constitution (Forty
second Amendment) Act, 1976, the power
relating to alternative remedy has been
considered to be a rule of self imposed
limitation. It is essentially a rule of policy,
convenience and discretion and 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 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
1 All Ghaziabad Development Authority V. R.C. Saxenaand others
445
provided, the High Court should ensure that
he has made out a strong case or that there
exist
good
grounds
to
invoke
the
extraordinary jurisdiction.

9. In Harbanslal Sahnia vs. Indian Oil
Corpn. Ltd. (2003) 2 SCC 107, the Supreme
Court reiterated the same principles and
held that the rule of exclusion of writ
jurisdiction by availability of alternative
remedy is a rule of discretion and not one of
compulsion and the Court must consider the
pros and cons of the case and then may
interfere if it comes to the conclusion that
the petitioner seeks enforcement of any of
the fundamental rights where there is a
failure of the principles of natural justice or
where the orders or proceedings are wholly
without jurisdiction or the vires of an Act is
challenged.

10. It is also well settled in the case of
U.P. State Bridge Corporation Ltd. and
others vs. U.P. Rajya Setu Nigam S.
Karamchari Sangh (2004) 4 Supreme Court
Cases 268 and other cases that it would
need a very strong case indeed for the High
Court to deviate from the principle that
where a specific remedy is given by the
Statute, the person who insists upon such
remedy can avail of the process as provided
in that Statute and in no other manner.

11. In the case of A.P.Foods vs. S.
Samuel and others (2006) 5 S.C.C. 469, the
Supreme
Court
reiterated
the
same
principles and held that a writ petition under
Article 226 of the Constitution of India
should not be entertained when the statutory
remedy is available under the Act, unless
exceptional circumstances are made out.

12. Expressing a serious concern over
the heavy arrears in this court, a Division
Bench of this Court held in Manvendra
Misra (Dr.) Vs. Gorakhpur University
(2000) 1 UPLBEC 702 that since writ
jurisdiction is a discretionary jurisdiction
hence if there is an alternative remedy the
petitioner should ordinarily be relegated to
his alternative remedy. This is specially
necessary now because of the heavy arrears
in the High Court, and this Court can no
longer afford the luxury of entertaining writ
petitions even when there is an alternative
remedy in existence. No doubt alternative
remedy is not an absolute bar, but ordinarily
a writ petition should not be entertained if
there is an alternative remedy.

13.

Considering
the
aforesaid
decisions, a division bench of this Court has
again held in the case of Nanhe @ Indra
Kumar vs. State of U.P. and others, 2009
(2) ACR 2349, that no writ petition under
Article 226 of the Constitution should be
entertained when statutory remedy is
available under the concerned statute unless
exceptional circumstances propounded in
Whirlpool's case (supra) are made out.

14. As already discussed, the Act is a
complete code in regard to redressal of
grievances (complaints) of the consumer
and also in regard to appeal and revision
against the order passed by the State
Commission and other authorities, and as
such the extra ordinary writ jurisdiction
under Article 226 of the Constitution of
India, which is a discretionary jurisdiction,
should not be invoked in such matters.

15. In view of the aforesaid, the writ
petition
is
not
maintainable
and
is
accordingly dismissed with costs.
---------
446 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.04.2011

BEFORE
THE HON'BLE RITU RAJ AWASTHI,J.

Service Single No. - 2289 of 2011

Pankaj Kumar and others
 ...Petitioner
Versus
State Of U.P. Through The Principal Secy.
In The Dept.Home
 ...Respondent

Counsel for the Petitioner:
A.P.Singh

Counsel for the Respondent:
C.S.C.

U.P. (Civil Police and Head Constable
Service rules 2008)-Rule 26 readwith
Regulation
520
Police
Regulationtransfer order challenged on ground in
view of judgment 29.05.10 in W.P. No.
3838 of 2010 in which Constitution of
Regulation Police Establishment Board
itself-illegal hence as approval given by
Regional
Police
Board
without
jurisdiction-held-in view of Full Bench
decision
of
Vinod
Kumar
caseConstitution of Regional Police Board
found proper-as such transfer order can
not be bad-second ground of attack after
existence of Rule 2008 , G.O. 11.07.86
lost its significance also misconceived as
the Rule does not cover the field of
transfer as such the G.O. still applicable.

Held: Para 11 & 15

So far as the contention of learned
counsel for the petitioners that the
Government
Order
dated
11.7.1986
stands superseded after coming into
force Rules 2008, is concerned, it is to be
noted that the preamble of Rules 2008
recites that the said rules have been
framed
to
regulate
the
selections,
promotions,
appointments,
determination
of
seniority
and
confirmation etc. of the Constables and
Head Constables of civil police in the
police force. A reading of these rules
indicates that they do not deal with the
transfer of police personnel. It is also to
be seen that as per Rule 26 of the said
Rules 2008, the matters which are not
covered under these rules shall be
governed by the rules, regulations and
the
orders
applicable
generally
to
Government servants. The Government
Order dated 11.7.1986 specifically deals
with the transfer of police personnel as
such suffice is to mention that the said
Government Order dated 11.7.1986 is
duly applicable and enforceable in the
present case.

In this view of the matter, I am of the
considered view that constitution of
Regional Police Establishment Boards
can not be said to be wrong.

In the present case, the transfer order of
the petitioners has been passed after
approval
of
the
Regional
Police
Establishment Board as such it can not
be said to be bad in the eyes of law.
Case law discussed:
(2010) 3 UPLBEC 2060; 2011 (2) ADJ 177
(DB); Writ Petition No. 1781 (S/S) of 2011

(Delivered by Hon'ble Ritu Raj Awasthi,J. )

1. Notice on behalf of the opposite
parties has been accepted by the learned
Chief Standing Counsel.

Heard
learned
counsel
for
the
petitioners as well as Sri Badrul Hasan,
learned Standing Counsel.

2. This writ petition has been filed
challenging the transfer order dated
17.4.2011
including
the
decision/order/approval of the Regional
Police
Establishment
Board
dated
13.4.2011 by which the petitioners no. 1 to
5 have been transferred from Lucknow to