Babu Rao vs State of Hyderabad and Others

1.This is an application for the issue of a writ of Certiorari and direction under Article 226 of the Constitution. The Petitioner'' Baburao is the landlord of Survey No. 52 at Patoda, taluqa Kinwat. The opposite party No. 2 is the son of one Laxman, who was a protected tenant within the meaning of Section 34, Hyderabad Tenancy and Agricultural Lands Act, No. 21 of 1950. Laxman is now dead and Maruthi, alleging that he is the heir to his father and entitled to possession of the protected land, has applied for restoration thereof in view of that fact that Baburao has taken it into his possession illegally.

The application was filed in the Court of the Tahsildar and was decided u/s 32 of the aforesaid enactment. Sub-sections (1) & (2) thereof provide that a tenant entitled to possession of any land under the provisions of the Act may apply to the Tahsildar in writing in the prescribed form for delivery of possession & that no land-holder shall obtain possession of such land except under an order of the Tahsildar. Sub-section (4) then lays down ... that any person taking possession of any land or dwelling-house in contravention of Sub-section (1) or (2) shall, without prejudice to his liability to the penalty provided in Section 96, be liable to forfeit his crops, if any, grown on the land and to the payment of such costs as may be awarded by the Tahsildar or by the Taluqdar on appeal. Acting under the before said provisions, the Tahsildar of Kinwat passed an order that Maruthi, opposite party No. 2, is entitled to possession of the land as well as of the crops standing thereon. The applicant desires that this order of the Tahsildar should be quashed in view of the fact that it is erroneous and against equity, good conscience and natural justice.

The jurisdiction vested in this Court to issue prerogative writs is an extraordinary jurisdiction and it can be exercised only in cases where adequate or appropriate remedy is not otherwise available, or where protracted litigation might entail irremediable loss or hardship. u/s 90, Hyderabad Tenancy and Agricultural Lands Act, every original order passed by the Tahsildar is appealable to the Taluqdar and from the order passed in such appeal by the Taluqdar, a second appeal lies to the Board of Revenue. There is a further right of going up in revision to the Government u/s 9.1 against the final appellate order, on the ground that the order is contrary to law or that the Board of Revenue has failed to decide a material legal issue or that injustice has been occasioned by a substantial failure to follow the procedure provided by the Act. It is to be noticed that the authority, exercising the appellate or revisional jurisdiction under the afore-mentioned Act, has also been given the jurisdiction to pass such orders, consistent with the Act, by way of confirmation, recession or modification of the order impugned as may appear to it to be just.

It is clear in the present case that the applicant has an adequate remedy open to him and he can, by recourse to his right of appeal, obtain a complete and speedy recession of the Tahsildar''s orders. There appears to be no valid reason why he should be allowed to by-pass the regular procedure provided by the aforementioned Act and to come up to this Court and pray for exercise of its extraordinary jurisdiction under Article 226 of the Constitution.

It is urged on behalf of the applicant that he has no hopes of obtaining reversal of the Tahsildar''s orders on account of the existence of two Circulars, viz., Circulars Nos. 1375 dated 17-7-1952, and 2032, dated 13-9-1952. The former Circular has been laid before us. According to our reading, it only enjoins that enquiries in cases falling u/s 32 should be carried out as expeditiously as possible and that during the course of the enquiry, if it appears that the tenant has with him a certificate showing that he is protected under the Act, his possession should be regarded as ''prima facie'' valid till the presumption is displaced by the result of the enquiry. We do not consider that this Circular can preclude the appellate authority from considering the appeal on merits and giving lull justice to the aggrieved party.

The other Circular is not forthcoming and we have no reason to think that it operates to abrogate the Appellant''s right of appeal.

The applicant''s learned Counsel cited a number of cases in support of his petition: � Rashid Ahmed Vs. The Municipal Board, Kairana, ; � Sayeedah Khatoon and Others Vs. The State of Bihar and Others, ; � Buddhu Vs. Municipal Board and Others, ; and � Prabhabati Devi Vs. District Magistrate and Another, . None of these cases goes to the length of laying down that an applicant should be given a remedy by way of the issue of a writ, irrespective of the question whether or not another remedy is open to him. All that they purport to do is to emphasize that in appropriate cases where the other remedy available is either inadequate or is not speedy enough, the High Court may exercise its extraordinary jurisdiction. We do not think that these decisions have any application to the matter before us. In view of the fact that adequate and convenient remedy is available to the applicant for redressing the wrong of which he complains, we do not think that there is sufficient cause to allow him to obtain a writ of certiorari. We accordingly reject the application summarily.