Amar Saran and Shri Kant Tripathi, JJ. - (1.) 1. By means of this writ petition under Article 226 of the Constitution of India, the petitioner has questioned the validity of the impugned order dated 25.3.2009 passed by the District Magistrate, Etah (Annexure No.1 to the writ petition), whereby he has directed externment of the petitioner from the district Etah for a period of six months.
(2.) THE learned Additional Government Advocate raised a preliminary objection regarding maintainability of the writ petition on the ground that section 6 of the U.P. Control of Goondas Act, 1970, (hereinafter referred to as the Act) provides for an alternative efficacious remedy of appeal against the impugned order. THE learned A.G.A. further submitted that the petitioner instead of approaching this Court, should have filed an appeal before the Commissioner under section 6 of the Act. The learned counsel for the petitioner, on the other hand, submitted that despite there being availabliity of efficacious remedy by way of appeal under section 6 of the Act, the writ petition under Article 226 of the Constitution of India is maintainable in view of the fact that the District Magistrate, Etah, had no jurisdiction to pass the impugned order for externment of the petitioner, as the petitioner was not a resident of district Etah but was a resident of new district Kanshiram Nagar. The learned counsel for the petitioner further submitted that in view of the law laid down in Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others AIR 1999 SC 22, the writ petition is maintainable. 4. In order to appreciate the controversy raised in this case, it is necessary to consider certain important decisions on the subject. 5. In Whirlpool Corporation's case (Supra) the Supreme Court has held that under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain a Writ Petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 6. A similar view has been expressed in the case of State of H.P. and others vs. Gujrat Ambuja Cement Ltd. and another (2005) 6 Supreme Court Cases 499, in which the Supreme Court observed after relying on few important earlier decisions that except for a period when Article 226 was amended by the Constitution (Forty second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy, it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. 7. In Harbanslal Sahnia vs. Indian Oil Corpn. Ltd. (2003) 2 SCC 107, the Supreme Court reiterated the same principles and held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the Court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the petitioner seeks enforcement of any of the fundamental rights where there is a failure of the principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 8. It is also well settled in the case of U.P. State Bridge Corporation Ltd. and others vs. U.P. Rajya Setu Nigam S. Karamchari Sangh (2004) 4 Supreme Court Cases 268 and other cases that it would need a very strong case indeed for the High Court to deviate from the principle that where a specific remedy is given by the Statute, the person who insists upon such remedy can avail of the process as provided in that Statute and in no other manner. 9. In the case of A.P.Foods vs. S. Samuel and others (2006) 5 S.C.C. 469, the Supreme Court reiterated the same principles and held that a writ petition under Article 226 of the Constitution of India should not be entertained when the statutory remedy is available under the Act, unless exceptional circumstances are made out. 10. Expressing a serious concern over the heavy arrears in this court, a Division Bench of this Court held in Manvendra Misra (Dr.) Vs. Gorakhpur University (2000) 1 UPLBEC 702 that since writ jurisdiction is a discretionary jurisdiction hence if there is an alternative remedy the petitioner should ordinarily be relegated to his alternative remedy. This is specially necessary now because of the heavy arrears in the High Court and this Court can no longer afford the luxury of entertaining writ petitions even when there is an alternative remedy in existence. No doubt alternative remedy is not an absolute bar, but ordinarily a writ petition should not be entertained if there is an alternative remedy. 11. In view of decisions referred to above no writ petition under Article 226 of the Constitution should be entertained when statutory remedy is available under the concerned statute unless exceptional circumstances propounded in Whirlpool's case (supra) are made out. The petitioner's case needs to be examined in the light of these settled principles. 12. The learned counsel for the petitioner conceded that the impugned order for externment of the petitioner is appealable before the Commissioner under section 6 of the Act. In our view the Commissioner has not only power to entertain an appeal against the externment order passed under section 3 of the Act but has also power to confirm the order with or without modification or set it aside and has power even to stay the operation of the order pending disposal of the appeal subject to such terms as he thinks fit. As such the remedy of appeal provided under section 6 of the Act being in the nature of a continuation of the original proceeding seems to be very comprehensive, in which the petitioner may not only question the legality of the impugned order on merit but may also question the jurisdiction of the District Magistrate Etah in initiating the proceeding and passing the externment order under section 3 of the Act. 13. The main contention of the learned counsel for the petitioner in support of the maintainability of the writ petition was that the District Magistrate, Etah had no jurisdiction to pass the impugned order in view of the fact that the petitioner is not a resident of district Etah but is a resident of district Kashiram Nagar. This submission seems to have no substance. The Act has been enacted to make special provision for the control and supersession of Goondas for the purpose of maintaining public order. Section 3 of the Act empowers the District Magistrate to order for externment of Goondas. In order to appreciate the submission of the learned counsel for the petitioner, it is desirable to look into the relevant provisions of section 3 of the Act, which reads : "3. Externment, etc. of Goondas, - (1) Where it appears to the District Magistrate- (a) that any person is a Goonda; and (b) (i) that his movements or acts in the district or any part thereof are causing, or are calculated to cause alarm, danger or harm to persons or property; or (ii) that there are reasonable grounds for believing that he is engaged, or about to engage, in the district or any part thereof, in the commission of an offence referred to in Sub-clauses (i) to (iii) of Clause (b) of Section 2, or in the abetment of any such offence; and (c) that witness are not willing to come forward to give evidence against him by reason of apprehension on their part as regards the safety of their person or property, the District Magistrate shall by notice in writing inform him of the general nature of the material allegations against him in respect of clauses (a), (b) and (c) and give him a reasonable opportunity of tendering an explanation regarding them. (2) The person against whom an order under this section is proposed to be made shall have the right to consult and be defended by a counsel of his choice and shall be given a reasonable opportunity of examining himself, if he so desires, and also of examining any other witnesses that he may wish to produce in support of his explanation, unless for reasons to be recorded in writing the District Magistrate is of opinion that the request is made for the purpose of vexation or delay. (3) Thereupon the District Magistrate on being satisfied that the conditions specified in clauses (a), (b) and (c) of sub-section (1) exist may by order in writing.- (a) direct him to remove himself outside the area within the limits of his local jurisdiction or such area and any district or districts or any part thereof, contiguous thereto, by such route, if any, and within such time as may be specified in the order and to desist from entering the said area or the area and such contiguous district or districts or part thereof, as the case may be, from which he was directed to remove himself until the expiry of such period not exceeding six months as may be specified in the said order ; (b) (i) require such person to notify his movements, or to report himself, or to do both, in such manner, at such time and to such authority or person as may be specified in the order ; (ii) prohibit or restrict possession or use by him of any such article as may be specified in the order ; (iii) direct him otherwise to conduct himself in such manner as may be specified in the order, until the expiry of such period, not exceeding six months as may be specified in the order." 14. Section 3 of the Act, as extracted above, empowers the District Magistrate to direct the concerned Goonda to remove himself not only outside the area within the limits of his local jurisdiction but also from any area and any contiguous district or districts or any part thereof. Such removal may be directed to be made by such route, if any, and within such time as may be specified in the order. It is also within the competence of the District Magistrate to direct the concerned Goonda to desist from entering the said area or such contiguous district or districts or part thereof until expiry of such period not exceeding six months as may be specified in the order. The District Magistrate has also power to impose other conditions specified in sub-clauses (i), (ii) and (iii) of clause (b) of sub-section (3) in the externment order, besides mentioning the aforesaid conditions specified in clause (a) of sub-section (3) of section 3 of the Act. Neither section 3 nor any other provisions of the Act provides that the person against whom externment order is passed must be a resident of the district. If it appears to the District Magistrate that any person whether he is a resident of the district or not is involved in the activities referred to in clauses (b) and (c) of sub-section (1) of section 3 of the Act in the district and is a 'Goonda' within the meaning of section 2 (b) of the Act, he may pass the externment order of that person after making due compliance of the provisions of sub-section (1) and sub-section (2) of section 3 of the Act. There is nothing to stop a person, who is a permanent resident of a particular district, to move and indulge in various activities including the activities referred to in section 3(1) of the Act in other districts. In that situation the District Magistrate in whose district such activities are being carried out, has jurisdiction to pass an externment order under section 3(3) of the Act against such person. In our view, the submissions of the learned counsel for the petitioner that the District Magistrate, Etah had no jurisdiction on account of the fact that petitioner was not a resident of district Etah has no substance. 15. It may not be out of context to mention that petitioner's village Patiyali was a part of the district Etah when the proceeding under section 3 of the Act was initiated against him. Learned counsel for the petitioner conceded that the proceedings under section 3 of the Act was pending against the petitioner before the District Magistrate, Etah, when the new district Kanshiram Nagar was carved out. He further conceded that the new district Kanshiram Nagar has been carved out from a portion of the district Etah and the remaining portion is still a part of the district Etah. The show cause notice given to petitioner under section 3(1) of the Act was in regard to his externment from the entire area of the district Etah including the area that has fallen subsequently in the new district Kanshiram Nagar. Even assuming that the area comprising the new district Kanshiram Nagar is no more a part of the district Etah, the jurisdiction of the District Magistrate, Etah, did not cease to exist in regard to the area that continued to be the part of the district Etah even after formation of new district Kanshiram Nagar. It may also be mentioned that whenever new districts are formed ordinarily provisions are made in the notification to protect the pending proceedings in the old district. The petitioner has not filed the notification in regard to the formation of district Kanshiram Nagar to show as to what provisions were made in the notification in regard to proceedings pending before different courts and authorities in the old district Etah. 16. In our view, the submission of the learned counsel for the petitioner has no substance. 17. For the reasons stated above, the writ petition is not maintainable and is accordingly dismissed with costs.;