Existence Of Alternate Remedy Not An Absolute Bar To Entertain A Petition Under Article 226 : Meghalaya HC [Read Judgment]

The High Court of Meghalaya on Thursday held that existence of alternate remedy does not operate as an absolute bar to entertain a petition filed under Article 226 of the Constitution and that a person may approach the high court in case of natural rights violation.

"Existence of alternate remedy is not an absolute bar to entertain a petition under Article 226 of the Constitution of India. As per the law laid down by the Hon'ble Supreme Court in the case of Hanbanslal Sahnia & Ors. Vs Indian Oil Corporation & Ors., it has been held that the rule of exclusion of writ jurisdiction by availability of an alternative remedy, is a rule of discretion and not one of compulsion," Justice H. S. Thangkhiew said.

The order was passed in a petition filed by one, Sumarlin Wankhar, through Senior Advocate V. K. Jindal and Advocate C. Nongkhlaw, who assailed the ex-parte order passed by the Registration Authority of the Khasi Hills under Section 12 of the Khasi Hills Autonomous District (Khasi Social Customs of Lineage) Act, 1997, (the Act) whereby her surname 'Wankhar' had been withdrawn and cancelled.

Considerably, this Act was passed to prevent the claims of Khasi status by unscrupulous persons for the benefits conferred on the Khasi community as a Scheduled Tribe.

The Respondent authorities, through Senior Advocate V. G. K. Kynta and Advocates V. Mawlieh and A. N. Diengdoh, contested the petition on the grounds of maintainability, stating that the Petitioner ought to have availed her alternate remedy first, as provided under Section 13 of the Act. They also contended that the order was passed ex-parte only after ample opportunities were given to the Petitioner, who chose not to make any appearance.

The Petitioner on the other hand submitted that:

1. The alternate remedy, as pointed out by the Respondent, would not be efficacious in the facts and circumstances of the case where she had suffered grave injustice. Reliance was placed on Dhampur Sugar Mills Ltd v. State of UP, (2007) 8 SCC 338.

2. She had no knowledge about the proceedings and that the impugned order came to her knowledge only when she was issued a show-cause notice by the Probate Court, where from the Petitioner had sought grant of probate under Section 276 of the Indian Succession Act, 1925. Thus, the order was opposed to the principles of natural justice.

3. The impugned order was passed without jurisdiction inasmuch as Section 12 of the Act only prescribes for change of surname or 'Kur' or 'Jait' and does not empower the Registration Authority to withdraw or cancel the surname of any Khasi Scheduled Tribe.

4. The Act came into force only on in 2005 while she had been using the surname 'Wankhar' since her school days much before the Act came into force. Therefore, in absence of retrospective effect of the Act, it could not have application on her.

Findings

Agreeing with the aforementioned arguments, Justice Thangkhiew noted that the Act did not provide for striking of or withdrawing of a surname. With regard to the first contention raised by the Petitioner, he opined,

"by remanding the matter, this Court cannot vest the Registration Authority with the jurisdiction to adjudicate such dispute when the statute itself does not provide for the same".

"Facts of the instant case come well within the scope of the contingencies as enunciated by the judgment [Hanbanslal Sahnia & Ors. v. Indian Oil Corporation & Ors.] inasmuch as, there has been a violation of the principles of natural justice and the impugned order and the proceedings are without jurisdiction," it continued.

On the second contention, the court noted that the entire proceedings before the Registration Authority were completed behind the Petitioner's back and though the impugned order revealed that notices were issued there was no mention that the same were ever served upon the Petitioner.

With regards the third contention, the court said,

"Section 12 (2) provides only for petitions to be filed for effecting change of surname but nowhere does the provision lay down, that a complaint filed against a person for withdrawal or striking of the title or surname can be entertained, as has been occasioned in the present case...On scrutiny of the said provision, the complaint cannot be said to come within the ambit of Section 12 for the Registration Authority to adjudicate upon".

Lastly noting that the Act did not prescribe "retrospectivity", the court reserved silence on its mandate and said,

"The Act does not speak of any retrospectivity, but only indicates that it received the assent of the Governor on 23.02.2005 and was published in the Gazette of Meghalaya on 25.02.2005 meaning thereby the Act came into force only in the year 2005. However, the question as to whether a certificate from the Registration Authority is now necessary under the Act, for the writ petitioner to completely effect the change in surname, is left open".

In view thereof, the court quashed and set aside the impugned order, thereby restoring the surname of the Petitioner. 

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