Judgment:
ORDER
Satish K. Agnihotri, J.
1. Heard learned Counsel appearing for the parties.
2. By this petition, the petitioner seeks following reliefs:
7. This Hon'ble Court may kindly be 1 pleased to call for the entire records pertaining to the case of the petitioner from the possession of the respondent No. 2 kind perusal.
7.2 This Hon'ble Court may kindly be pleased to issue a writ in the nature of certiorari quashing and setting aside the impugned order dated 04.08.07 Annexure P-3
7.4 Any other relief or relief(s) which this Hon'ble Court may think proper in view of the facts and circumstance of the case, may also kindly be granted.
7.4 Cost of the petition be also awarded.' 2. The indisputable facts, as projected by the petitioner is that the petitioner is a firm engaged in the business of Kerosene oil. The petitioner hires tankers for lifting kerosene oil from depots. On 19.07.2007 the petitioner lifted kerosene oil from Raipur, Mandir Hasaud Depot which was to be unloaded at Ramanujnagar, District Surguja. After unloading the kerosene oil when the tanker was returning back to Raipur, the tanker was stopped and searched by the Food Officer and his team. According to the petitioner, when nothing was found, the driver and the conductor of the truck were compelled to fulfill their demand. On refusal, a panchnama was prepared. The said incident is said to have taken place on 20.07.2007. The respondent No. 2 , vide order dated 04.08.2007 (Annexure P/3), suspended the license of the petitioner alleging that 1200 liters of kerosene oil lifted by the petitioner under Public Distribution System, has been embezzled. Thus, this petition.
3. Shri Kesharwani, learned Counsel appearing for the petitioner submits that aforesaid act of the respondent No. 2 is against the principles of audi alteram partem. Further, the respondents have not complied with Rule 10 of the Madhya Pradesh Kerosene Dealer Licensing Order, 1979, before suspending the license of the petitioner.
4. Per contra, learned Counsel appearing for the State/respondents submits that before approaching this Court under Article 226 of the Constitution of India, the petitioner has an alternative remedy available under the provisions of Rule 16 and 17 of the Madhya Pradesh Kerosene Dealer Licensing Order, 1979.
5. I have heard learned Counsel appearing for the parties, perused the pleadings and documents appended thereto.
6. Rule 16 and 17 of the Madhya Pradesh Kerosene Dealer Licensing Order, 1979, reads as under:
16. Appeal. - (1) Any person, aggrieved by any order of the licensing authority refusing to grant, re-issue or renew a licence or cancelling or suspending a licence forfeiting the security deposited by the licensee under the provisions of this order, may appeal to the Commissioner or Additional Commissioner of the Division within 30 days of the date of the receipt by him of such order,
(2) No order shall be made under this clause unless the aggrieved person has been given a reasonable opportunity of stating his case.
(3) Pending the disposal of an appeal the Commissioner or Additional Commissioner of the Division may direct that the Order refusing to renew a licence or the order cancelling or suspending a licence or forfeiting the security shall not take effect until the appeal is disposed of.
17. Revision. - The State Government may on its own motion or on the application by any aggrieved party at anytime for the purpose of satisfying itself as to the legality or propriety of any order passed by Commissioner of the Division or Additional Commissioner, call for and examine the record of any case disposed of by the Commissioner or Additional Commissioner, as the case may be and may pass such Order thereon as it thinks fit:
Provided that it shall not any or reverse any Order unless the person affected by the proposed order has been given an opportunity of being heard.
Provided further that no application for revision shall be entertained unless presented within thirty days from the date of communication to the applicant of the order against which the application is being made.
7. On bare perusal of the above Rules, it is apparent that the petitioner has efficacious, alternative statutory remedy available for redressal of his grievances before approaching this Court. Further, the petitioner has not made out any exceptional circumstances so asto exercise discretionary jurisdiction under Article 226 of the Constitution of India.
8. On the question of availability of alternative remedy, the Hon'ble Supreme Court in the matter of State of H.P. and Ors. v. Gujarat Ambuja Cement and Anr., observed as under:
17. We shall first deal with the plea regarding alternative remedy as raised by the appellant State. 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 of 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 or that there exist good grounds to invoke the extraordinary jurisdiction.
21. In G. Veerappa Pilla v. Raman & Raman Ltd., CCE v. Dunlop India Ltd; Ramendra Kishore Biswas v. Stae of Tripura, Shivgonda Anna Patil v. State of Maharashtra; C.A. Abraham v. ITO, Titaghur Paper Mills Co. Ltd. v. State of Orissa; H.B. Gandhi v. Gopi Nath and Sons; Whirlpool Corpn. v. Registrar of Trade Marks, Tin Plate Co. of India Ltd. v. State of Bihar, Sheela Devi v. Jaspal Singh and Punjab National Bank v. O.C. Krishnan, this Court held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction.
9. Further, applying the said ratio in the matter of U.P. State Spinning Co. Ltd. v. R.S. Pandey and Anr., the Hon'ble Supreme Court observed as under:
21. In U.P. State Bridge Corpn. Ltd. v. U.P. Rajya Setu Nigam S. Karmachari Sangh, it was held that when the dispute relates to enforcement of a right or obligation under the statute and specific remedy is, therefore, provided under the statute, the High Court should not deviate from the general view and interfere under Article 226 except when a very strong case is made out for making a departure. The person who insists upon such remedy can avail of the process as provided under the statute. To the same effect are the decisions in Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke, Rajasthan SRTC v. Krishna Kant, Chandrakant Tukaram Nikam v. Municipal Corpn. of Ahmedabad and in Scooters India v. Vijai E.V. Eldred.
10. In another decision on the concept of maintainability of writ petition vis--vis availability of alternative remedy, the Hon'ble Supreme Court in the matter of Secy. U.P. High School & Intermediate Education, Allahabad and Anr. v. H.K. Lal, observed as under:
4. From the records it is borne out that the question asto whether the respondent has a legal right to alter his date of birth recorded in the certificate granted by the Board was pending consideration before the appellate Court. The writ petition filed by the respondent should, therefore, not have been entertained particularly in view of the fact that the appeal thereagainst was pending. Writ jurisdiction is discretionary jurisdiction and should not ordinarily be exercised if there is an alternative remedy.
11. A common thread running into the dicta laid down by the Hon'ble Supreme Court in the aforementioned cases is that normally the High Court should not interfere if there is an adequate, efficacious alternative remedy where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedy before resorting to writ jurisdiction, except when a very strong case is made out for making a departure.
12. Applying the well-settled dicta laid down by the Hon'ble Supreme Court on the issue of availability of alternative remedy to the facts of the case, this petition is dismissed as not maintainable as no strong case has been made out for exercise of extraordinary discretionary jurisdiction in favour of the petitioner. However, it is open to the petitioner to take recourse to alternative statutory remedy that may be available to the petitioner under the provisions of Rule 16 and 17 of the Order, 1979, if so advised.