fiTR.. HIGH COURT OF JUDICATURE CHHATTISGARW : BILASPUR SINGLE BENCH : HON'Bt.E SHRI S.R. NAYAK, CJ. PETmONER w RESPONDENTS WRITPETITION N0.6387 OF 2005 Dhaneshwar Devangan S/oShriRamjeeDevangan At -R/o Panch Ward No. 07 Gram Panchayat- Katgi, Tehslj Kasdol, District- Raipur (C.G.) Versus 1. State &r ChhatBsgarh Throy^h - The Secr^tary, Panchayat & Social Weltere, Department D.K.Sl Bhawan, Rajpur 2. The pjrector, Panchayat& Social Weffiare Department, D.K.S. Bhav^in, Raipur 3 The Cotlector, District- F^tipur (G<G^ 4. TheVpper Collector, I Batoda Bazar. DistrictRaipur (C.G^ 5. Pyranlal Dwangan B(. Sarpawh GjFam PancJ'iayatKatgi.TeKsJlNasdote.Distt. Raipur(C.G.) Present: Mr. Ravish VeiTna, team^ counsel for^ ^ Mr. Yashwant Singh, leamed GA., fbif theiState/respondent. ORAI.ORDER (Passedon 20th Decemt?er, 2005) The petitioner was etected as panch of Gram Panchayat, Katgl vlllage, Kasdole Tehsil, Ralpur Districtln the year2005. After his election as Panch, it appears ttiat a complarrt ^vas jlodged by ttie fif&i respondent hertein before Ihe Upper Coliector, Eteloc|a Bazar, frie fourth resp<mderrt herein, all^mgftatthe fourth childtrf the| pe^onerwastwrn on 17/02/2001and therefore, h@ was disqualified to bejetected as a Panch ^ • . . • . - : : . ; i of Gram Panchayat. The fourth respondent hswing conducted ah enquiry on the said atteoatton by his order dated 24/11/2005 ^et aside^ie ^lection of the petitioner as Panch on the ground that his fourth child v^s bpm on r'" iitliili lil^iiilJE (T< 17A32/2001, that is to say. after thecutoffdatei.e. 26/01/2001. Being aggrieved by the above order, tftis writ petition is filed under Articte 226 of the Constitutfon of India. (2) At the threshold of I the hearing, leamed Govemment Advocate poinled outtiial tiie pefflioner w'rthout exhausting attemaBve statutory remedy has approached tiite Court and therefore, he may be directed to first exhaust the alternaBve remedy and the writ petition be dtemissod in limino, (3) Having heard leamed counsel for the petitioner, 1 do not think that it is a frt case where the Court should permft tt»e petitioner to straightaway invoko tho jurisdiction of this Courtunder Articte 226 without exhausting attemayve appeal remedy provfcled uncler sub-Section (4) of Section 36 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (for s/)orf 'theAdhiniyam). i (4) Attimes tt becomes necessary for the Court to remind iteelf about the setf-imposed restraints and limitetions in exerdse of the power flranted totheCourt by the Constitution underArticte 226. TheCourtcan take judicial notice of the fect that large number of writ petjtions are filed in this Court by persons withoutexhaustlng statutoryialtematlveremedlesor other remedies avaiJabte to them. Articte 226 empowere High Courts to jssue directions, orders or writs in the nature of habeas coipifs, mandamus, prohibiffon, quo wa/ranfoand certforari or any ofthem. Such ^ .\ '..'. .- •• '" . 1'- • •' • •' : •• ' • ! ' '. • •• • i : . . •. ' •-. directtons, orders or writs may be issued for the enforcoment of fundamental rights or for any other purpose.It is w®HsetUed that the remedy provided for in Article 226 of the Constitutjon js a discretJonary remedyand the High Court has always the discretion to refuse reltefto an applicant in certain circumstances even though a legal right might have been jnfringed. Availability pf an jattemative remedy is pne of such considerations which the High Court may teke inte account to refuse to oxerdse its jurisdiction, but, this principle does not apply to the enforeement of Fundamental Rights either under Article 32 or under226 of the Constjtution. The Supreme Court in Mohd. Yasin vs. Town Area Committee'1 and the cases to follow that ease held ttiat an aMsemative remedy Is not a bar to move a wrtt peUtlon in the High Court to enforce a fundamenlal right This is the only exc»ption.In allj ottier cases where no fundamental rightis imnrfved, ithas been rule^l ttiat ttie High Court would not exercise its jurisdiction under Article 226 when ar^ altemative, actequate and officacious tegal remody is availabtojand the petitionw has not availed <rf the same before coming to the High Court. Of course, Articte 226 is silent on this point: it does not say in so may words anything about thjs matter, but the Courts have themsehws evolved this ruleas a klnd of seir-lmposed restriction on their jurtsdiction underArticte 226. The rule of exhaustion of a remedy before involdng jurisdtetion under Anicte 226 has been characterKced as a rute of policy, convenience and diac^reBon ruther ttiana rute of tew, per dedstona of Viw Supreme Court in State of Uttar Practosh vs. Md. Nooh2 and Babu Ram vs. Zilla Parishad3. The above rule has been justified on the ground that persons should not be encouraged to drcumverrt the provisions made bya stetute providing for a mechanism and procedure to chaUenge admintstrative or qyasj-Judiclaj actlons taken thereunder. 1.AIR 1952 SC 115 2.AIR1958SC8e. 3.AIR 1969 SC 556 iSMS8^ cr~ ^•^msfm^iiiM X3 4 (8) In Union of Indla vsj. T.R. VaHtma^ the Supreme Court observed: "tt is wetl settted tiat Mvtien an altwns^ve and ©qualty efficacious remedy is open to a titigant, he shoukl be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is truethatthe existence of another remedy does notaffedthe jurisdiction of the Court to issue a wrft: bufc. ."the existence of an adequate legal remedy ts a thlng to be taken into consideration in the matter of granting write....."And when such remedy exists, it will be a soundexercise of dlscretjpn to refuse to interfere in a petition under Articte 226, unless there are good grounds therefor." (8) In Thansingh vs. Supdi Of Taxes5 the Supreme Court wa^ pleased to observe: 'The jurisdiction of the High Court under Artide 226 of the Constitution is couched in wide tenns and ttw ®<ereise thereof is not subject to any restrictions except tt»eterrttorial r^tric^ions whicharewpres^y provided ih the Arfictes. But ttie exercise of ttie jurisdiction is discretionary; it is not exercised merely because it is lawful to cfo so. The yery amplitude of the jurisdiction demands that jtlwtH ordinarily be exerctsed subject to certaln s^lf-imposed limitations. Resort to that jurisdiction is not intended as an attemath/e remedy for relief which may be obtained In a suit or other mode pr^crihsd by statute. Ordinarilythe Courtwitl notentertain a petition for awrit under Articte 226 where the petltioner has an areemative remedy, whieh wtthout belng|unduly onereys. provicles an equally efficacjous remedy. jAgatrt the^ H^ Court does not generalty enter upon a determination of questions which demand an etaborate; examinatJon of evidence to establishthe right to enforcewhich the writ is 4. AIR 1057 SC 882 5. AIR1964 SC1419 ?:::j^ clatmed. The High Oourt does not, therefore, act as a Court of appeal against the decisjon of a Court or Tribunal to correct errors of fact, and does not by assuming jurisdiction uncter Articte 226 trench upon an altemative remedy provicled by statuto for obtaining rettef. Whwe it is open to the aggrieved petitioner to n^pve another Tnbunal, or even itself in ano&ier jurisdteUonl for obtaining redress in tt»e manner provided by a statute, the High Court normally Wl)l not permit by entertaining a petition under Articte 226 of the Constttution the machinery created under the st^ite to be bypassed, and it will teave the party applying to it to seek resort to the machinery so se( up." ^: (7) In Assistant Collector of Central Excise vs. Dunlop India Limited8th^SypremoCourtinpara3^^o ''Article 226 is not meant to short-circuit or circunnvent statutory proeedures. It is only where stertutsory remedies are entirely ill-suited to meet the aemands |of extraordlnary sifciations, as <br insfance where the very yires of the stafcite is in question or where private or publicjwrQngs are so ine)dricably mixed up and the prevention of pyblic injury and the vindication of public justice require it that recourse may be had to Art. 226 of the Constltutlon. But ttien the Court must have good and sufficient reason ito l;>y-pass <he altemative remedy provided by statute. iSui^ly matters involving the revenue where stafartory remedies are ayailabte are not such mattere. We can also take Judteia) rtotjce ofttie fact that the vast majority of the petitions under Art. 226 of the Constitution are flted sotely for tiie purpose }(tf obteinlng jnterim ordersand thereafter prolong the proeeecljngs by one devtee or the dher. The pracUce certalnly rieeds to N stronglydiscpuraged." 6. AIR1985SC330 ^A 6 I^;: (8) Further, what could bs gatfiered from the decisions of the SupremeCourt ih U.P.J.N.vs. Nare|shwar7, T.P.M.vs.SteteofOnssa1, H.B. Gandhi vs. Gopi Nath and ScMris* is that where stefcitory remedies are available or stetutory Tribunal has boen set up, a petition under Articl® 226 should not be entertained, unlesstthe statutory remedies are ilt-suited to meet the demands of any exftaorcljnary sHuation, for example, where the very vires of the stetute is in ciuestion; or where privat®Qr publte wrongs are so inextricably mbced up and the prevention of public injury and the vindication of public justice require that recourse may be had to Article 226; or v^ere ttie attemative remedy is not |effecBye or adequate; or where Ihe aH»ma8vereme<ty is on^ or burdejnsonne or inadequate; or where it invotvos inordinato delay or illuso»ry in nature; whw®th@ impugned actjon is palpably wong or goes to the root offthe jurisdiction or where there is total laclcofjurisdfctionjn theauthdrityl (8) There are cortain sound reasons behirid this rute. Remedies by way of Judicial review under Article 226 are fundamontally dHferent from theother remedies. Insteadof substituting its own deciskm for that of some other body. as happens when an appeal is allowed. the High Court on review underArticte 226 is concemed only with theiquestionwhether the Act or order under attack should be allowed to stand or not. It Is quite often stressed by the Courts that judicial review is not agajnst a decision under attack but againsl the decteion-making prooess.In H.B. Gandhi vs« Gopi Nath and Sons (Supra 9), In para 8, the Supreme Court observed: "Judjcjal review, it is trite, js not dtrected aQajnst the decisjon but is conflned to ttie decision making process. JudicssS rsview cannotextend to the examinaSibR o^ She 7.(1995)1SCC21 8.AIR1983SC603 9.1992SUpp.(2)SCC312. I.:;;!'-" 'i|iij;. correcfriess or reasonableness of a decision as a matterof fect. The purpose of judicial review is to ensure that ie tndividual recehws Nr treatmentand not to ensure thatthe authorityafteraccordingfaiirtreatmentreaches.onamatter which it is authorized by law to decide, a conclusion which is corrert in the eyes ofth^ law/Judidal revtew^^^fe^^ appeal from a decision but a rwiew of the manner in which the decislon is made. tt will be erroneous to thtnk that flie Court sits in judgment not only on tie correctness of the dedsion makingprocess but also on the correctness ofthe decision ftself." (10) HWJ^. Wade in his treatiso on Atiministrative Law (6th Edition) at page 36 observes: "The system of judicial review is radjcally different from the system of appeals. When hearing an appeal the Courts is concemed with tiie merits of the dedsion under appeal. When subjecting some administrative act or order to judicial review, the Court is concerned wtth fts legaltty. On an appeal the question is 'right or wrong?' On review the question is 'lawfulorunlawful?' (11) The other underlying object of ttie rule is that the High Courts are the ^>®<Judicial inatitutions in ttie States, and it is but natural that if an alternativ®suitablo ©quallyofficacious remody is availabte to ttte party, they may refuse to exerdse fte exlTaordinary jurisdiction under ArtteJe 226 and direct the agflrievied party to first avail of the said alternatjve remedy before approaching the High Court. The extraordinary jurisdictlon of the High Court under Arttete 226 cannj^ be reduced to an ordinary jurisdiction of the High Court. Similariy, to my mjnd, another object beyond the rule is to save Judge-time ofthe Hi|gh Oourts. The High .1 Courta are chaiged with oneroys duties <rf deeiding ttie ConsBtutional quQstions.viresofthostatutosandtheclefogsrtedNstelationsanddiecidi^ 8 {£) the appeals, revisions, reviews and references made to the High Couris under yarious statutes, and if the High Courts were to ©nterteinthe writ applications filed without exhausting the alternative stafaitory or common law remedies.the High Courte would not find necessary time to adjudicate upon the essential and unavoidabte disputes brought before ttiem for adjudication. (12) In tho premiso of th©abovo well sottled principles, Iho qudstion to be consid^red <s whothor fr»e petitior^r ha^ madte out any extraordinary ground for him to rush to this Court invoking the pcwerof judjcial review vested in this Court under Artjele 226 of the Constjtution of lndia.As pointed out supra, under sub-Section (4) of Section 36 of the Ac iiniyamthe petitjoner has rightofappeajagainstthejmpugnedorder.jt is needless to state that in an appeal, the appellate auttiority can 90 into the questions of fact and law. The appeal remedy is more comprehensive as wolt as more efFoctJVG. ThSs Court under Articto 226 oftho Constjtution cannot go into tho questions of fact or undertake resolution ofttie disputed facte. After hearing Jeamed counsel for the petitioner, 1 do ndt find any sound reason which could persuade me to permit the petitioner to by-pass the statutory remedy of appeal provided under sub-Sec^on (4) of Section 36 of the Adhiniyam. tt Is not that the exigencies of this case are such that the ordinary method of appeal may prove inadequate either in point of prompbiess or completeness, so ttiata partistf 6r total failure ofjustice may resutt. In Harris Vs. Barbar10 , it was held that when ahappeal does lie, in order to quash a proceeding by certiorari, it is necessary that there be iack af jurisdictions appearing on the (ace of the racord. tn the 10.129 US 366 fMT m!!'^ll i^Ii H\ 9 :1; ^ circumstance, the wrft petition is dismissed with no order as to Gosts, however, reserving liberty to the petitioner to avail of appeal remedy before theappellat®authority as provjded in sub-Se^ion (4) of Section 36 of the Adhiniyam. All the cont®ntions|raised by the petitioner in this writ petition are teft open to b@ agitated l^y the petitioner before the appellate authority for its decisjon-making. Sd/- ChiefJustice Brajosh* ^^