TMI Blog2017 (5) TMI 1117X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court to issue a prerogative writ as the writ jurisdiction is meant for doing justice between the parties where it cannot be done in any other forum. SCN issued under Section 68H(1) of the NDPS Act, 1985 whereby the petitioners were required to indicate the source of income , earnings or assets out of which or by means of which they have acquired or possessed or has interest in the property - Held that:- The writ petitions against the show cause notice are not maintainable. Issuance of show cause notice is a statutory provision subject to limitation. The purpose of its issuance is to seek a reply for the proposed actions thereunder, before initiation of adjudication proceedings. In other words, show cause notice is merely answerable and not questionable in a writ proceeding. Therefore, afore-captioned writ petitions are not maintainable and are liable to be dismissed. - WRIT PETITION NO.8391 (MB) OF 2017, WRIT PETITION NO.4692 (MB) OF 2017, WRIT PETITION NO.5231(MB) OF 2017, WRIT PETITION NO.5236 (MB) OF 2017, WRIT PETITION NO.7953 (MB) OF 2017 - - - Dated:- 5-5-2017 - Hon'ble Dr. Devendra Kumar Arora And Hon'ble Ravindra Nath Mishra-II, JJ. ORDER Heard S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegal acquired properties of the petitioner-Dev Shankar Mishra, his relatives and associates. The reason for passing order under Section 68-F of NDPS Act has been assigned that petitioner-Dev Shankar Mishra is the person of Section 68-A (2)(cc) of NDPS Act, who has been arrested on 05.03.2003 hence by exercising powers under Section 68-E (1) of NDPS Act, mentioned properties in the list of Schedule of Properties and all properties should not be transferred or sale without the permission of Investigating Officer (his or from the competent authority) by petitioner-Dev Shankar Mishra and others. The Competent Authority passed confirmation order on 12.12.2003 under Section 68-F (2) of NDPS Act confirming the order dated 12.11.2003 passed by the Investigating Officer under Section 68-F (1) exercising his power under Section 68-E of NDPS Act, vide F. No. Lko/CA/NDPS/25/2003-746. According to the learned Counsel for the petitioners, the mandate of Section 68-H (1) after confirmation of order under Section 68-F (2) recorded reason of believe, that since petitioner-Dev Shankar Mishra is a person against whom an order of detention vide F No.125/2/34/2003-CX-5 dated 09.03.2004 was passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the statutory remedy provided under Section 68-O of the NDPS Act and has relied upon various decisions of this Court as well as of the Apex Court. It has been conveyed that petitioners can very well raised the pleas which they have raised here before the Appellate Tribunal. It has also been pointed out by him that Petitioner-Dev Shanker Mishra has now been convicted in S.T. No. 185/2003 by learned Special Judge F.T.C. Court No. 29, District- Barabanki, on 29.08.2007 and Criminal Appeal has been preferred before Hon'ble High Court of Lucknow Bench, vide Criminal Appeal No. 2282/2007 and the same is still pending. It has also been asserted that the petitioner is a person covered under Section 68A(2)(a) of the NDPS Act, 1985 and properties were traced and identified by Central Bureau of Narcotics which falls within the ambit of Section 68-E of the Act First of all, we would like to deal the objections raised by the respondents' Counsel regarding non-exhaustion of alternative remedy by the petitioners. Section 68-O of the Act deals with the presentation of appeals, if he is aggrieved in any manner and it reads as under:- (1) 1[ Any officer referred to in sub-sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in exercise of powers conferred under Section 68-I of the NDPS Act. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition but the High Court has imposed upon itself certain restrictions one of which is that if an statutory, effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. In this context, we may observe that the existence of alternative remedy is not an absolute bar, is a legal proposition, which has been propounded by the Apex Court and this Court in series of cases. It would be useful to refer the decisions rendered by the Apex Court in this regard. In Thansingh Nathmal v. Superintendent of Taxes; [AIR 1964 SC 1419], the Apex Court adverted to the rule of self-imposed restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. In the case of L. Chandra Kumar Vs. Union of India and others, reported in AIR 1997 SC 1125, a seven Judges Constitution Bench of Hon'ble Supreme Court held as under:- Though judicial review in the basic feature of the Constitution, the vesting of power of judicial review in an alternative institutional mechanism, after taking it away from the High Courts, would not do violence to the basic structure so long as it was ensured that the alternative mechanism was an effective and real substitute for the High Court. In the case of Karnataka Chemical Industries and others vs. Union of India and others (2000) 10 SCC 12, it was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SBI Vs. Allied Chemical Laboratories). 24. In City and Industrial Development Corpn. Vs. Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168, this Court had observed that: (SCC p. 175, para 30) 30. The Court while exercising its jurisdiction under Article 226 is duty bound to consider whether: (a) adjudication of the writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; (d) the person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. Recently, the Hon'ble Supreme Court in Civil Appeal No. 10706 of 2011 (Nivedita Sharma Versus Cellular Operators Assn. Of India and others) decided on 07.12.2011, considered the question of alternative remedy/exhaustion of remedies and has held that Articles 226/227 are not available if an efficacious alternative remedy is available to aggrieved per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India. Thus, by a series of decisions it has been settled that the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ, if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power, if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. Thus it is apparent that the petitioners have rushed directly to this Court and have by-passed the statutory alternative remedy, which is not permissible in view of the aforesaid settled position. It may be noted that when an alternative and equally efficacious statutory remedy is open to a litigant, he should be required to pursue that remedy and not to invoke the extra ordinary jurisdiction of the High Court to issue a prerogative writ as the writ jurisdiction is meant for doing justice between the parties where it cannot be done in any other forum. In the case of Whirlpool Corporation vs. Registrar of Trade Marks (1998 (8) SCC 1), which has been relied upon by the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re required to indicate the source of income , earnings or assets out of which or by means of which they have acquired or possessed or has interest in the property. The writ petitions against the show cause notice are not maintainable. At this juncture, it would be useful to mention that in the case of Union of India V. Vicco Laboratories' - 2007 (11) TMI 21 - SUPREME COURT OF INDIA (2007) 12 SCR 524the Supreme Court held that normally the writ should not interfere at the stage of issuance of show cause notice by the authorities. In such a case the parties get ample opportunity to put forth their contentions before the authorities concerned and to satisfy the authorities concerned about the absence if case for proceeding against the person against whom the show cause notice has been issued. Abstinence from interference at the stage of issuance of show cause notice in order to relegate the parties to the proceedings before the authorities concerned is the normal rule. However the said rule is not without any exceptions. Where a show cause notice is issued either without jurisdiction or an abuse of process of law, certainly in that case, the writ court would not hesitate to in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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