K.S.JHAVERI,J - (1.) By way of this petition the petitioner has challenged the show cause notice dated 24.1.1998.
(2.) While considering the case, this Court vide order dated 2th November, 2017 passed the following order:- "1. By way of these writ petitions, the petitioners have challenged the show cause notice along with the other proceedings by way of Writ Petition No.1439/2001. Time and again the matter was heard on merits. Notice was issued on 28.01.1998 and the following order was passed:- " It has been submitted by Mr. Sharma, that the Commissioner of Customs has no jurisdiction to investigate in to the matter as to whether the petitioner herein i.e. Soni Hospital is treating the required number of patients as laid-down in the Notification No.64/88 free of costs as was the condition laid-down in the said Notification, on the basis of which the petitioner had been granted exemption from paying customs duty for importing "City Scan Machine". Issue notice to the respondents and be given dasti to the learned counsel for the petitioner. The petitioner in the mean time is directed to appeal before the Commissioner of Customs and to explain his bonafide seeking exemption. If any final order is passed, that will be made effective until further order by this Court. Put up on 05.02.1998." 2. This Court after hearing both the sides admitted the matter and fixed for hearing on 31.08.2006. However, after almost a decade when the matter has come, counsel for the respondent has raised preliminary objections relying on following decisions that the petitioner is required to be relegated to alternate remedy: 1. Rajasthan State Industrial Development and Investment Corporation and Anr. v. Diamond and Gem Development Corporation Limited and Anr., (2013) 5 SCC 470, wherein it has been observed as under:- 6. The Appellant vide notice dated 4.7.1992, informed the Respondent-company, that as per Clause 2(n) of the lease deed, all construction had to be completed within a stipulated time period of 5 years. The Respondent-company began asking the Appellant to provide it accessibility via road, from the Jaipur Tonk main road and, as the same was provided, the Respondent-company filed Writ Petition No. 5481 of 1994 before the High Court, seeking the issuance of a direction to the Appellant to provide to it, the aforesaid road. 7. During the pendency of the aforesaid writ petition, the Appellant expressing its dis satisfaction with regard to the progress of the development of the said land by the Respondent-company, filed a reply to the said writ petition before the High Court stating that it was under any obligation to provide to the Respondent-company the aforementioned approach road, as the lease deed had been executed between them, on the basis of an "asis-where is" agreement. Further, the Appellant issued a show cause notice dated 29.8.1996, to determine the lease in light of the lease agreement, in lieu of the fact that the Respondent-company had made any progress regarding the completion of the project, and even after the expiry of a period of 5 years, only 10% of the total construction stood completed. In pursuance thereof, the lease deed was cancelled vide order dated 1.10.1996, and possession of the land in dispute was taken back by the Appellant on 3.10.1996. 9. The High Court vide its impugned judgment and order, allowed both the writ petitions quashing the order of cancellation, and directed the restoration of possession of the aforesaid land to the Respondent-company, and further, also directed the Appellant to provide to the Respondent-company, the approach/access road demanded by it. Hence, these appeals. 13. Before proceeding further, it may be pertinent to refer to the relevant statutory provisions, and certain terms of the lease deed. 13.1 Rule 11-A of the Rules 1959 read: ..... xx xx xx Clause (iv) of Rule 11-A.- The Rajasthan State Industrial Development and Investment Corporation Ltd. may sublease the leased land or part thereof for industrial purpose; including essential welfare and supporting services. Provided that in the case of Diamond and Gem Development Corporation to whom the land has already been leased out by RIICO for 99 years, the sub-lessee i.e. DGDC may further sublet and the terms and conditions and other provisions contained in the rules in so far as they relate to RIICO shall mutatis mutandis apply to DGDC also as if the land in question has been let out to them by State Government under Rule 11-A. (Emphasis added) 13.2. There has been further amendment to Rule 11-A of the Rules 1959 w.e.f. 12.10.2000, and the relevant part thereof reads as under: In Rule 11-A of the said rules, after condition (iv) and before condition (v), the following new condition (iv-a) shall be inserted; namely: (iv-a) The sub lessee of the Rajasthan State Industrial Development and Investment Corporation Limited may further sub-lease the sub-leased land or part thereof on such terms and conditions as may be mutually agreed between such sub-lessee and subsequent sublessee. The terms and conditions applicable to sub-lessee shall also mutatis mutandis apply to such subsequent sub-lessee. 13.3. Rajasthan State Industrial and Investment Corporation Limited (Disposal of Land) Rules, 1979 (hereinafter referred to as 'Rules 1979'), deals with the allotment of land by RIICO to entrepreneurs. Relevant rules thereof read as under: 16. The allottee shall except with the written consent of the Corporation, be allowed to sublet the constructed premises for industrial purpose only which can be considered on following conditions: (i) The sub-letting of vacant and/or unutilized land in the industrial areas of the Corporation shall be allowed. (ii) That consent of the Managing Director be given to the allottee of the plot (owner) to sublet the whole or part of the constructed premises after the allottee has cleared all the outstanding dues of the Corporation and started the production at the allotted plot on the following conditions: (iii) xx xx xx (iv) Permission for transfer of surplus/unutilized land with the units which have come into commercial production shall be granted on payment of premium as may be decided by the Corporation from time to time which is presently equal to 50% rate of development charges at the time of such transfer of difference amount between the prevailing rates of development charges and the rates of development charges on which the allotment was made whichever is higher. 24. Cancellation-The Corporation shall have the right to cancel the allotment after issuing 30 days show cause notice to the allottee by the concerned Senior Regional Manager/Regional Manager on any breach of any of these rules, condition of allotment letter and terms of lease agreement. 13.4. It may also be pertinent to refer the relevant terms and conditions of lease deed dated 22.5.1989, which read as under: AND WHEREAS the lessor has agreed to demise and the lessor has agreed to take on lease, the piece of land known as plot No. SP-1 Indusrial Area, Sanganer, Phase-II on "as is where is basis" 2(b) That the lessee will bear, pay and discharge all service charges as may be decided by the lessor from time to time which for the present would be @ Rs. 10.10 (Ten paisa per sq. mtrs.) per year from the date, the lessor provided as pucca links road in this area. (d) That the lessee will erect on the demised premises .....and will commence such construction within the period of 6 months and will completely finish the same fit for use and start production within the period of 60 months from the date of these presents or within such the case of these presents, or within such the date of these presents or within such extended period of time as may be allowed by the lessor in writing at its discretion. (g) That the lessee will provide and maintain in good repair a properly constructed approached road or path alongwith the event across drain to the satisfaction of the lessor/local Municipal Authority leading from the public/cooperation road to the building to be erected on the demises premises. (i) The lessee will without the general prior consent in writing of the lessor transfer, sublet, relinquish, mortgage or assign his interest in the demised premises........ (m) .........That lessee shall construct and complete the said building and put the demised premises with the buildings constructed thereon to use here in above mentioned within 54 calendar months from the date of possession of the said land is handed over to him and in any case within 60 calendar months from the date of this agreement provided that the lessor may at his discretion extend the time hereinbefore provided if in his opinion the delay is caused for reasons beyond the control of the lessee. Provided that utilized land of the allotted plot of land shall revert to the Corporation on the expiry of the prescribed/extended period for starting production/expansion of the unit. (r) The lessee will in each year within 2 months from the expiry of the account in year supply to the lessor a copy of his profit and loss account pertaining to the accounting year and the business run by him in the demised premises. 3(a) Notwithstanding anything hereinbefore contained if there shall have been in opinion of the lessor any breach by the lessor.... or if the lessee fails to commence and complete the buildings in time and manner it shall be lawful for the lessor ....to reenter without taking recourse to the Court of law up on the demised premises or any part there of his name of whole and there on this demise shall absolutely cease and determine and the money paid by the Lessee by virtue of these preset shall stand forfeited to the lessor without prejudice to rights of the lessor here under with interest thereon at @19% per annum and the Lessee shall be entitled to any compensation whatsoever. (h) Every dispute, difference or question touching or arising out or in respect of this agreement to the subject matter shall be referred to the sole arbitrator, the Collector of the District wherein the leased plot is situated or a, person appointed by him. The decision of such arbitrator shall be final and binding on the parties. 39. The cancellation of allotment was made by Appellant-RIICO in exercise of its power under Rule 24 of the Rules 1979 read with the terms of the lease agreement. Such an order of cancellation could have been challenged by filing a review application before the competent authority under Rule 24 (aa) and, in the alternative, the Respondent-company could have preferred an appeal under Rule 24(bb)(ii) before Infrastructure Development Committee of the Board. The Respondent-company ought to have resorted to the arbitration clause provided in the lease deed in the event of a dispute, and the District Collector, Jaipur would have then, decided the case. However, the Respondent-company did resort to either of the statutory remedy, rather preferred a writ petition which could have been entertained by the High Court. It is a settled law that writ does lie merely because it is lawful to do so. A person may be asked to exhaust the statutory/alternative remedy available to him in law." 3. Mr. R.D. Rastogi, ASG, has also relied upon the decision in case of Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr., (2004) 3 SCC 440, wherein it has been observed as under:- "5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally non est in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, granted." 4. Mr. Rastogi, ASG relied upon the decision in Union of India and Anr. v. Kunisetty Satyanarayana, (2006) 12 SCC 28, wherein it has been observed as under:- "13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramdesh Kumar Singh and Ors. AIR 1996 SC 691 , Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr. 2004 (164) ELT 141 (SC) , Ulagappa and Ors. v. Divisional Commissioner, Mysore and Ors. JT 2000 (10) SC 206 , State of U.P. v. Brahm Datt Sharma and Anr. [1987] 2 SCR 444 etc. 14. The reason why ordinarily a writ petition should be entertained against a mere show cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does give rise to any cause of action, because it does amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or chargesheet does infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance." 5. However learned counsel Mr. Kamlakar Sharma, Sr. Adv. pointed out that averments which are made in Para 10, 11 and 12 of the Civil Writ Petition No.517/1998 which reproduced as under:- 10. That on receiving the aforesaid communication requiring the petitioner to appear on 21.1.98, the petitioner, well in advance on 16.1.98 sent a communication to the Commissioner, Customs through its Counsel Sanjay Anand and Association, mentioning that the petitioner had requested for supply of photo copies of the documents on the basis of which show Cause notice has been issued which were sought to be relied upon by the department by its letter dated 26.12.97. It was requested that to enable the petitioner to give a proper written reply before the hearing can take place, it is highly imperative that the photo copies of the documents that have been referred to in the show cause notice and which were being sought to be relied upon by the department, be supplied to the petitioner and thereafter six weeks time may be granted, so that the reply may be filed. 11. That on 21.1.98 when the petitioner through its Counsel appeared before the Commissioner, Customs who was in office and the matter was taken by the Asstt. Commissioner of Customs, Group-5C. No hearing took place on that day and the petitioner's counsel was informed that they should appear before the Customs Commissioner on 24.1.98. When the petitioner's counsel asked the Asstt. Commissioner, Customs to supply the photostat copies of the documents on the basis of which show cause notice had been issued and which were sought to be relied upon by the department, the Asstt. Commissioner, Customs informed the counsel that he was authorised in this regard and that they should appear for hearing on 24.1.98. 12. That 24.1.98 was a non working day of the Central Government being a Saturday, yet the case was fixed for 24.1.98, which clearly shows the malice with which the matter was being proceeded against the petitioner. The petitioner's counsel on 24.1.98 requested the Commissioner, Customs for supply of the necessary documents, so that an effective reply may be submitted and a proper opportunity may be granted to the petitioner for defending it. The Commissioner, Customs specifically told the counsel that he was under tremendous pressure from the higher authorities to decide the matter before 28.1.98 and that in no case, he would give any time to the petitioner to either file any reply nor any documents would be supplied to the petitioner. The Commissioner, Customs also informed that the matter was being fixed on the first working day i.e., 27.1.98 at 9.30 AM, on which date, he would pass an order for confiscating the goods and levying customs duty amounting to Rs. 46,88,194/- against the petitioner. The attitude of the Commissioner, Customs is absolutely clear that entire action was being taken by him denying the basic principles of natural justice and without giving proper opportunity of hearing to the petitioner, merely because in the Public Interest Litigation before the Delhi High Court, the date 28.1.98 has been fixed. It is, therefore, clear that the entire action is being taken against the petitioner absolutely illegally, arbitrarily and malafidely and the passing of the order a formality. The proceedings before the Commissioner, Customs therefore, are an absolute futile exercise so far as the petitioner is concerned and there is absolutely no chance of any legal opportunity of hearing being given to the petitioner does even know as to on what basis he is being proceeded against or what is the basis on which the Show Cause notice has been issued. The issuing of an order by the Commissioner, Customs would have serious penal consequence on the petitioner. The machine which has admittedly been installed on 6.11.92 and which started Commercial functioning on 22.11.92 even as per the show cause notice is sought to be confiscated merely on a technical plea that the installation certificate has been submitted by the petitioner, even though, no such certificate was ever demanded by the Customs Department uptill now. Even otherwise, issuing of an installation certificate is an act which is totally required to be performed by the State Government/Central Government and the petitioner can hardly have any say in this regard. The petitioner has been making timely requests to the state Government with copies to the Director General, Health Services, New Delhi, but no action has been taken by them. Apart from that the only other allegation against the petitioner is that the petitioner has been able to fulfill the condition of treating 40% of its outdoor patients free. The petitioner submits and maintains that it has fully complied with the terms and conditions of the notification and it is possessed with the entire record of the treatments awarded to the patients. It may also be mentioned that prior to the show cause notice, the Commissioner, Customs never at any point of time inspected the hospital of the petitioner nor did he require the petitioner to submit any documents to prove that he was fulfilling the conditions and the entire matter is proceeded against the petitioner one sided. Thus action is being sought to be taken only for confiscation of essential equipment which is being used by the hospital for public benefit, but the petitioner is also being sought to be liable to make duty amounting to Rs. 46,88,194/-. It is, therefore, necessary that enquiries into such matter be proceeded with properly after giving due opportunities tot the parties. They cannot be made in a haphazard or hasty manner denying the basic principles of natural justice to such persons." and it is also contended that the original examination certificate was granted by the Commissioner Delhi and the notice was issued by the Commissioner Jaipur, therefore, action was without jurisdiction and examination was granted and the notice issued by the Custom Collector, Jaipur therefore notice was without jurisdiction in the Civil Writ Petition No.1439/2008 in paras 5 and 6 which reads as under:- "5. That it appears that the Central Government in the Customs Department started making inquiries with regard to a number of exemption certificates which had been granted by it as a consequence of some Public Interest Litigations filed in the Delhi High Court and to overcome the orders passed by the Hon'ble Delhi High Court in that case, it started issuing show cause notice to all those persons or firms or companies which had imported equipments under customs exemption. In pursuance there to, a show cause notice dated 6.12.1997 was also issued to the petitioner. The aforesaid show cause notice was challenged by the petitioner by filing a writ petition before this Hon'ble Court being S.B. Civil Writ Petition No. 517/1998 which is pending in which stay orders have also been issued by this Hon'ble Court to the effect that a direction had been given that the petitioner would appear before the Commissioner of Customs and explain his bonafide seeking exemption and if any final order is passed, it will effective till further order of this Hon'ble Court. The petitioner appeared before the Commissioner of Customs (Aircargo) New Customs House, New Delhi and also appeared before the Customs Authority, Jaipur, however, no final order has been passed by the Customs Authority as yet." 6. The matter is pending for almost two decades. Mr. Sharma relied upon following decisions: 1. Dr. Bal Krishna Agarwal v. State of UP and Ors, (1995) 1 SCC 614, wherein it has been observed as under:- "9. The learned Counsel for the appellant has urged that the High Court was in error in dismissing the Writ Petition of the appellant on the ground of availability of an alternative remedy having regard to the fact that the Writ Petition had been filed in 1988 and it had been admitted and was pending in the High Court for the past more than five years. The learned Counsel has also urged that the High Court was right in saying that there was dispute on questions of fact. According to the learned Counsel there is no dispute that the appellant had been selected by the Selection Committee for appointment on the permanent post of Professor which was advertised and the said recommendation of the Selection Committee was accepted by the Executive Council in its Resolution No. 197 dated November 8, 1984. The fact that the name of the appellant was also included in the list of Readers for personal promotion to the grade of Professor in Resolution No. 198 of the Executive Council would mean that the appointment of the appellant to the post of Professor was by way of personal promotion and on the basis of selection for the cadre post of Professor which was advertised. The learned Counsel also submitted that it is the case of the appellant that he joined the post of Professor in Physics on November 8,1984 and that his case is that the appellant as well as respondents Nos. 4 and 5 all joined as Professors in Physics on November 9, 1984. 10. Having regard to the aforesaid facts and circumstances, we are of the view that the High Court was right in dismissing the Writ Petition of the appellant on the ground of availability of an alternative remedy under Section 68 of the Act especially when the Writ Petition that was filed in 1988 had already been admitted and was pending in the High Court for H the past more than five years. Since the question that is raised involves a pure question of law and even if the matter is referred to the Chancellor under Section 68 of the Act it is bound to be agitated in the court by the party aggrieved by the order of the Chancellor, we are of the view that this was a case where the High Court should have non-suited the appellant on the ground of availability of an alternative remedy. We, therefore, propose to go into the merits of the question regarding inter se seniority of the appellant and respondents Nos, 4 and 5. We may, in this context, mention that the respondent No. 4 has already retired in January, 1994." 2. Krishan Lal v. Food Corporation of India and Ors., (2012) 4 SCC 786, wherein it has been observed as under:- "18. It is true that there was an arbitration clause in the agreement executed between the parties. It is equally true that, keeping in view the nature of the controversy, any claim for refund of the amount deposited by the appellant could be and ought to have been raised before the Arbitrator under the said arbitration. The fact, however, remains that the High Court had entertained the writ petition as early as in the year 2002 and the present appeals have been pending in this Court for the past ten years or so. Relegating the parties to arbitration will be feasible at this stage especially when the proceedings before the Arbitrator may also drag on for another decade. Availability of an alternative remedy for adjudication of the disputes is, therefore, a ground that can be pressed into service at this belated stage and is accordingly rejected." 3. Siemens Ltd. v. State of Maharashtra and Ors., (2006) 12 SCC 33, wherein it has been observed as under:- "Leave granted. Whether the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India would interfere with a demand directing payment of cess is in question in this appeal which arises out of a judgment and order dated 8.07.2005 passed by a Division Bench of the High Court of Judicature at Bombay in Writ Petition No. 4338 of 2005. The appellant is a multi location company. It has a factory and godown at Kalwe. It pays cess for the goods supplied from the said factory in terms of the provisions of the Bombay Provincial Municipal Corporation Act, 1949. It also owns a factory at Aurangabad. Its office is at Kharghar. The said factory at Aurangabad and the office at Kharghar are outside the jurisdiction of the city limits of Navi Mumbai and, thus, outside the territorial jurisdiction of the Bombay Municipal Corporation. Supplies are made to dealers directly from the appellant's factory situated at Aurangabad and office at Kharghar. However, the establishment of the appellant at Kalwe was directed to pay taxes, although according to it, no jurisdictional fact exists therefor. The demand was made terming the same as a show cause notice. It appears that in course of routine investigation, some vendors had made certain complaints as regards the transactions of goods from the appellant's factory at Kalwa. The appellant made its representation on receipt of the said purported demand. Oral and written submissions were also made on 2.05.2005 and 10.06.2005 stating that the appellant had neither been receiving any goods within the local limits of Respondent No. 2 nor was it an importer in respect of the goods directly sold from its Aurangabad factory or from its subvendors' manufacturing premises and, therefore, they were liable to pay any cess thereupon. By reason of a purported show cause notice, the appellant was directed to make payment of cess with interest immediately in respect of the purported supplies made to Navi Mumbai parties right from 1.06.1996. It was, however, stated: "You are also requested to attend at above address at 11.00 a.m. on 4.7.05 hearing. I am enclosing herewith the photocopies of the bills raised by Aurangabad Daman divisions to the Navi Mumbai Vendees." A writ petition was filed by the appellant herein questioning the said purported notice. By reason of the impugned order, the High Court refused to exercise its jurisdiction under Article 226 of the Constitution of India stating: "Challenge is to a show cause notice issued by the Corporation demanding certain payment of cess on the value of goods imported from Aurangabad and Daman. Petitioners may file their reply to the show cause notice and produce the relevant documents within two weeks. In case the order is adverse to the petitioner no recovery shall be made for a period of four weeks from the date of service of the order on the petitioner."Before this Court a counter affidavit has been filed wherein although inter alia it was contended that the said show cause notice cannot be termed as an order determining the rights and obligations of the parties, it has clearly been stated: "I say that the show cause notice dated 22.6.2005 at Annexure P-2 to the Special Leave Corporation has been deprived of lawful recovery of Cess on the said goods imported within the jurisdiction of the Respondent Corporation. I say that such evasion of Cess is in huge amounts and it is perfectly within the rights of the respondent Corporation to call upon all the parties involved in the transactions to arrive at the exact finding of fact. I say that for arriving at the finding of fact with regard to the said imports there are many facts which need to be taken into account. I say that such factual aspects include : which is the party which has imported the goods within the jurisdictional limits of the respondent Corporation what is the nature of contract between the seller and the said importer of goods, is there any mechanism used by the parties to avoid payment of Cess on the said import of goods, what is the extent of Cess that is evaded as a result of such mechanism and who ultimately can be held responsible both for the purposes of recovery as also for the purpose of penalty" It was further asserted: "I say that it is well known that under the Bombay Provincial Municipal Corporation (Cess on Entry of Goods) Rules 1996 goods purchased from registered dealers are subject to Cess. I say that in this view of the fact the entire nature of the transactions, to which the petitioner also was party, need to be examined and scrutinized from the perspective of recovery of cess and identification of liability. I say that if the petitioner has directly or indirectly supplied the goods the petitioner itself must come forward to cooperate with the respondent Corporation to enable it to discharge its duties prescribed under the B.P.M.C. (Cess on Entry of Goods) Rules, 1996 read with B.P.M.C. Act 1949" The question as to whether jurisdictional fact existed for issuance of the said notice order passed by the respondent was in question in the said writ petition. Although ordinarily a writ court may exercise its discretionary jurisdiction in entertaining a writ petition questioning a notice to show cause unless the same inter alia appears to have been without jurisdiction as has been held by this Court in some decisions including State of Uttar Pradesh v. Brahm Datt Sharma and Anr. AIR 1987 SC 943, Special Director and Another v. Mohd. Ghulam Ghouse and Another, (2004) 3 SCC 440 and Union of India and Another v. Kunisetty Satyanarayana, 2006 (12) SCALE 262], but the question herein has to be considered from a different angle, viz, when a notice is issued with pre-meditation, a writ petition would be maintainable. In such an event, even if the courts directs the statutory authority to hear the matter afresh, ordinarily such hearing would yield any fruitful purpose [See K.I. Shephard and Others v. Union of India and Others (1987) 4 SCC 431 : AIR 1988 SC 686 ]. It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in the counter affidavit as also in its purported show cause. The said principle has been followed by this Court in V.C. Banaras Hindu University and Ors. v. Shrikant [2006 (6) SCALE 66], stating: "The Vice Chancellor appears to have made up his mind to impose the punishment of dismissal on the Respondent herein. A post decisional hearing given by the High Court was illusory in this case. In K.I. Shephard and Ors. etc. etc. v. Union of India and Ors. [AIR 1988 SC 686], this Court held : "It is common experience that once a decision has been taken, there is tendency to uphold it and a representation may really yield any fruitful purpose." [See also Shri Shekhar Ghosh v. Union of India and Anr. 2006 (11) SCALE 363 and Rajesh Kumar and Ors. v. D.C.I.T. and Ors. 2006 (11) SCALE 409 ] A bare perusal of the order impugned before the High Court as also the statements made before us in the counter affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has already determined the liability of the appellant and the only question which remains for its consideration is quantification thereof, the same does remain in the realm of a show cause notice. The writ petition, in our opinion, was maintainable. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed and the matter is remitted to the High Court for its consideration afresh on its own merits. No costs." 7. The Supreme Court decision which has sought to be relied upon has been relegated by the authority from the record it seems that the relevant time to decide the issue under pressure and dependancy of the public interest litigation which was fixed on 28.01.1998. The issue which is pending for 20 years though petitioner has appeared before both the authorities, notice has been heard nor any order was passed as stated by Mr. Anuroop Singhi and the matter is still on show cause notice. However, in view of two decisions which is submitted by Mr. Rastogi Center Government which considered to be ideal opponent after two decades. In our considered opinion, power under Article 226 of the Constitution was exercised against the injustice and the matter was admitted. We are of the opinion that the matter was required to be heard. However, we reject the contention of alternate remedy and will proceed on merits on the next date of hearing. In the mean time, it will be open for Center Government of if appropriate call of the order which has been passed above. In our considered opinion the Court has to look at the injustice done by the parties and merely because alternate remedy he cannot be thrown out of the Court after 20 years. 8. Matter to come up on 14.12.2017."
(3.) Counsel for the petitioner contended that the notice is being challenged on the ground that petitioner was given the documents inspite of demand and hearing was also fixed on 24th January, 1998 which was a non working day being Saturday and the same was specifically alleged in the present.;