Pat HC | Discretionary jurisdiction under Art. 226 of the Constitution can be exercised when no alternative efficacious remedy is available

Patna High Court

Patna High Court:  A Division Bench of Dinesh Kumar Singh and Anil Kumar Sinha, JJ. allowed a civil writ application that was filed for quashing of an order passed by the District Magistrate, Bhagalpur in Misc (Excise) Case No. 159 of 2018-19, whereby the petitioner’s vehicle had been confiscated.

In the present matter, the writ application was filed to quash an order passed by the District Magistrate, Bhagalpur, whereby the petitioner’s vehicle was confiscated. The vehicle was confiscated in relation to a case registered under, Section 30(a) of the Bihar Prohibition and Excise Act, 2016, as amended by Amendment Act 8 of 2018, on charges of transporting illicit liquor.

Counsel for the petitioner, Vyash Kumar Mishra submitted that, petitioner was bona fide owner of the vehicle in question, confiscation proceeding had been initiated on 04-09-2018 and now vide the impugned order dated 26-07-2019, the vehicle of the petitioner had been confiscated. It was directed that the vehicle was to be sold by an open auction sale and after that deposition of the sale money in the treasury, hence, the petitioner had prayed for the quashing of the final order.

Counsel for the respondent, Rewati Kant Raman stated that the vehicle in question had already been confiscated, vide order dated 26-07-2019, passed by the District Magistrate, Bhagalpur, and there was provision of appeal against the final order passed by the District Magistrate, within ninety days before the Excise Commissioner by virtue of Section 92(2) under Chapter IX of the  Act.

High Court held that the Act provided an alternative efficacious remedy of appeal against the order passed by the Collector, so the court was not inclined to interfere in the matter. Relying on Whirlpool Corpn. v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1, it was further held that discretionary jurisdiction under Article 226 of the Constitution of India was subject to self-imposed restriction and such discretion could be normally exercised when there was no alternative efficacious remedy available or writ petition had been filed for the enforcement of any of the fundamental rights or where there had been a violation of the principle of natural justice or where the order or proceedings were wholly without jurisdiction or the vires of an Act was under challenge.

The Writ Application was disposed of with a liberty to the petitioner to prefer an appeal within a period of four weeks. [Shobha Singh v. State of Bihar, 2020 SCC OnLine Pat 80, decided on 16-01-2020]

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