SCR.A/622/2008 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 622 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE MD SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= HABIBBEG CHHOTUBEG MOGAL - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR MB GANDHI for Applicant. MR CHINMAY M GANDHI for Applicant. Mr.K.P.Raval, APP for the respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE MD SHAH Date : 13/08/2008 ORAL JUDGMENT 1. This petition filed under Articles 226/277 of the Constitution of India challenges the legality and validity of the show cause SCR.A/622/2008 2/5 JUDGMENT notice dated 1-6-2006 issued by the Asst. Police Commissioner, I- Division, Ahmedabad produced at Annexure “G” to the petition as well as the order of externment bearing no.PCB/HDB/51/08 dated 14-3-2008 passed by the respondent no.2-Police Commissioner, Zone 6, Ahmedabad City, under Section 56(B) of the Bombay Police Act, produced at Annexure I to the petition. 2. Heard Mr. M.B.Gandhi, learned Counsel for the petitioner and Mr. K.P.Raval, learned AGP for the respondents. 3. At the outset, learned AGP submitted that since statutory alternative remedy of appeal is available to the petitioner, the petition is liable to be dismissed. 4. Mr. M.B.Gandhi, learned Counsel for the petitioner has argued at length and had made a valiant attempt to contend that once the writ petition is admitted by the High Court, then the High Court cannot after a long lapse of time direct the party to avail of the statutory alternative remedy of appeal. To make good his submissions, the learned Counsel has drawn my attention to the following authorities – 1. Mohan Vasta v. State of Gujarat reported in 1985 G.L.H.199. 2. Mehsana District Co-op,Purchase & Sales Union Ltd. v. Dhadhusan Beej Utpadak Rupantar and Vechan Karnari Sahkari Mandali Ltd. Reported in 1998(1) G.L.H.170. SCR.A/622/2008 3/5 JUDGMENT 3. Whirlpool Corporation v. Registrar of Trade Marks, reported in AIR 1999 SC 22. 4. Kanak v. U.P.Avas Evam Vikas Parishad reported in AIR 2003 SC 3894. 4.1 I have gone through the aforesaid authorities and there is no dispute to the propositions laid down therein. 5. This Court is of the opinion that the facts situation in the present case requires that the matter will have to be dealt with by the appellate authority , especially when, during the course of the arguments, learned AGP Mr. K.P.Raval has raised the objection about the availability of statutory alternative remedy, and as such this Court is not required to advert to all those contentions raised by the learned Counsel for the petitioner. No special circumstances or special reasons have been pointed out by the learned Counsel so as to by-pass the statutory remedy of appeal. The learned Counsel for the petitioner also could not point out any error, irregularity or illegality in the impugned order which cannot be obliterated or cured on appeal. The High Court cannot deviate from the general view and interfere under Article 226 of the Constitution except when a very strong case is made out for making a departure , otherwise, every citizen will knock the doors of the High Court straight away without availing the effective alternative remedy. In the present case the petitioner has not made out any strong case for making a departure. 6. In the present case, the impugned order is passed under SCR.A/622/2008 4/5 JUDGMENT Section 56(B) of the Bombay Police Act and remedy of appeal against the said order is provided under Section 60 of the Act. There can be no dispute to the fact that the remedy of appeal is not efficacious and effective. This Court is conscious of the fact that procedural delays and technicalities of law should not be permitted to defeat the object sought to be achieved by the Act. The question with regard to limitation or lack of jurisdiction can be taken care of by passing necessary directions as the appellate authority can passed order on all the grounds including lack of jurisdiction. 7. I am fortified in my view by the decision rendered in the case of (1) Uttaranchal Forest Development Corpn. And Another v. Jabar Singh ad Ors reported in (2007) 2 Supreme Court Cases 112, Para- 44 of the judgment, and (2) Sachin Udyog Nagar Sahakari Mandli Ltd. & Anr. v. State of Gujarat & Ors, reported in 1997(4) GCD 63 (Guj.), Para 2 of the judgment. 8. For all these reasons, I am of the opinion, that the petitioner who had not availed of the alternative statutory remedy of appeal is not entitled to any relief in this petition. 9. In the result this Special Criminal Application is dismissed on the ground of availability of statutory alternative remedy. Rule is discharged. The petitioner would be at liberty to file an appeal against the impugned order before the appellate authority and the appellate authority shall hear and decide the same on merits and in accordance with law within one month from the date of filing of the appeal after affording opportunity of hearing to the parties and SCR.A/622/2008 5/5 JUDGMENT considering all grounds including lack of jurisdiction. The appellate authority shall not dismiss the appeal on the ground of limitation. (M.D.Shah,J.) After passing of the above order, learned Advocate Mr. Gandhi for the petitioner submitted that for the purpose of filing appeal, the petitioner be permitted to enter into the local limits of Ahmedabad, and the petitioner will in advance, inform the concerned police authority of the date on which he wants to enter into the local limits of Ahmedabad. The request is accepted. Order accordingly. (M.D.Shah,J.) lee.