- (1.) THIS petition raises substantial questions of law as to whether the Lokayukta has the jurisdiction to entertain and decide a matter which has already been adjudicated upon by a Competent Court of law including this Court or which is still sub-judice. Shri A.K. Mishra, learned Counsel for the petitioner has placed a very heavy reliance upon the provisions of the Uttar Pradesh Lokayukta and Up-Lokayuktas Act, 1975 (hereinafter referred to as 'Act, 1975') submitting that the said provisions put a complete embargo upon the jurisdiction of the Lokayukta to deal with a case if the complainant has a remedy before a Court or Tribunal. It is submitted by Shri Mishra that it is not a question of having the remedy, in the instant case, the respondent No. 2 has already exhausted the remedies and at least one case is still sub-judice. He has also referred to the provisions of Section 8(5) of the Act, 1975 which puts a complete bar in respect of matters where the discretion has been exercised by the Statutory Authority.
(2.) SHRI P.C. Srivastava, learned Counsel appearing for respondent No. 2 has raised a preliminary objection regarding the maintainability of the writ petition, pointing out that it is against a impugned show cause notice and therefore, not maintainable. However, Shri Mishra has submitted that where the notice itself is challenged for want of jurisdiction, the writ petition is maintainable. It is settled legal proposition that a show cause notice cannot be challenged in the writ jurisdiction unless the authority, which has issued it, is found to be having no jurisdiction in the matter, as held by the Constitution Bench of the Hon'ble Supreme Court in Calcutta Discount Co. Ltd. v. Income Tax Officer, Companies District 1st, Calcutta and another, AIR 1961 SC 372, wherein the Court observed as under : "It is well settled, however, that though the writ of prohibition or certiorari will not be issued against an executive authority, the High Courts have power to issue, in a fit case, an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority, parting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court, it is well settled, will issue appropriate orders or directions to prevent such consequences."
(3.) A similar view has subsequently been reiterated by the Hon'ble Apex Court in Madhya Pradesh Industries Ltd. v. Income Tax Officer, Special Investigation Circle B, Nagar, (1965) 57 ITR 637; State of Madras v. Madurai Mills Co. Ltd., AIR 1967 SC 681; M/s. S.B. Gurbaksh Singh v. Union of India and others, AIR 1976 SC 1115; Titaghur Paper Mills Co. Ltd. and another v. State of Orissa and another, AIR 1983 SC 603; Chief of Army Staff and others v. Maj. Dharam Pal Kukrety, AIR 1985 SC 703; Union of India and another v. M/s. Brij Fertilizers Pvt. Ltd. and others, (1993) 3 SCC 564; Union of India and others v. Upendra Singh, (1994) 3 SCC 357; Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh and others, AIR 1996 SC 691; Union of India and others v. Metal Box Co. of India Ltd. and others, (1996) 11 SCC 122 and Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1.;