Doli Mandir Shri Mahadev Ji vs State Of Rajasthan And Ors

These two writ petitions have been filed in the name of Doli Mandir Shri Mahadev Ji challenging the validity of the order dated 10.01.2020 passed by District Collector, Pali (for short 'the District Collector' hereinafter) while exercising powers under Section 89 of the Rajasthan Land Revenue Act, 1956 (for short 'the Act of 1956' hereinafter), whereby the District Collector has allowed the respondent No.5 - Company to use 114 Bighas and 10 Biswas of land situated in various Khasras of village Sinla, Tehsil Jaitaran, District Pali, recorded in the name of Doli Banam Mandir Shri Mahadev Ji, for subsidiary purposes related to the mining. The District Collector has also directed the respondent No.5 to deposit a compensation to the tune of Rs.2,63,55,679/- to Devasthan Department within a period of one month.

SBCWP No.4315/2020 is filed by Doli Mandir Shri Mahadev Ji through Sarpanch of Gram Panchayat, Kharadi, Panchayat Samiti, Jaitaran, District Pali, whereas SBCWP No.5395/2020 is filed on behalf of Doli Mandir Shri Mahadev Ji through two residents of village Sinla claiming themselves as devotees of the petitioner - Mandir.

SBCWP No.4315/2020 was presented on 13.05.2020 in which, this Court directed to issue notices on 26.05.2020 and learned counsel Mr L.K.Purohit was directed to accept the notices on behalf of respondent Nos.1 to 4. In the said writ petition, service upon respondent No.5-company has also been effected and Mr Sudhir Sharma is appearing on behalf of it.

SBCWP No.5395/2020 was presented on 07.07.2020, wherein Mr Sudhir Sharma has put in appearance in advance on behalf of respondent No.5 and filed reply to the writ petition, wherein preliminary objection has been raised while contending that against the order dated 10.01.2020 passed by the District Collector, the petitioners are having alternate remedy to file an appeal as provided under Section 75 of the Act of 1956. Mr Sharma has also submitted that in view of the availability of alternate and efficacious remedy to the petitioners, this writ petition deserves to be dismissed on this ground alone.

Replying to the preliminary objections raised on behalf of respondent No.5, learned counsel for the petitioner has argued that the remedy of filing appeal against the impugned order is not available to the petitioner. It is submitted by the learned counsel for the petitioners that the impugned order passed by the District Collector does not fall within the meaning of "judicial matter" as defined in Sub-section (2) of Section 23 of the Act of 1956, therefore, the alternate remedy of filing an appeal under Section 75 of the Act of 1956 challenging the impugned order is not available to the petitioners. Learned counsel for the petitioners has further argued that even if it is assumed that the order impugned is appealable, then also, this Court while exercising powers under Article 226 of the Constitution of India can entertain the writ petition, where the order under challenge is passed by the authority without having any jurisdiction or if the same is passed in violation of principles of natural justice.

In support of the above contentions, learned counsel for the petitioners has placed reliance on the decisions of this Court rendered in Jaswant Singh vs. State of Rajasthan & Anr., WLC (Raj.), 2003 (3) 359, M/s Popcorn Entertainment & Anr. vs. City Industrial Development Corpn. & Anr., WLC 2007 (1) SC Civil 635, Jaipur Development Authority vs. Beni Das Agarwal & Ors., WLC 2008(2) Raj. 645 and Premier Printing Press vs. State of Rajasthan, 2017(3) WLC (Raj.) 454, and submitted that this Court while relying on various decisions of the Hon'ble Supreme Court as well as of this Court has specifically held that where there has been violation of principles of natural justice and where the order of proceeding is wholly without jurisdiction, the bar of alternate remedy cannot come in the way of entertaining the writ petition under Article 226 of the Constitution of India.

Learned counsel for the petitioners has further submitted that this Court issued notices in SBCWP No.4315/2020 way back in May 2020 and reply to the writ petition was also filed on behalf of respondent No.5, then it would not be appropriate, in the interest of justice, to dismiss the writ petition filed on behalf of the petitioners on the ground of alternate remedy.

Learned counsel for the petitioners has submitted that this Court in SBCWP No.12656/2014, Chhotu Ram & Anr. vs. State of Rajasthan decided on 25.02.2015 has clearly held that it is settled position of law that existence of alternate remedy would itself not be a bar from entertaining petition filed under Article 226 of the Constitution of India.

Learned counsel for the petitioners has, therefore, argued that these writ petitions do not deserve to be dismissed on the ground of alternate remedy and the same may be decided on merits only.

Heard learned counsel for the parties.

The contention of the learned counsel for the petitioners that the impugned order passed by the District Collector does not fall within the meaning of "judicial matter" as defined in Sub-section (2) of Section 23 of the Act of 1956 is bereft of any merits. The expression "judicial matter" is defined under Sub-section (2) of Section 23 of the Act. In the above referred provision, it is clearly provided that "judicial matter" means a proceeding in which revenue court or officer has to determine the rights and liabilities of the parties. In the present case, the District Collector has authorized the respondent No.5 vide impugned order to use the land in question for subsidiary purposes related to the mining. The petitioners are challenging the said action of the District Collector and taking into consideration the said fact, it cannot be denied that the question involved in this case relates to the rights of the parties about the use of the land in question, therefore, the dispute between the parties falls within the expression "judicial matter" as defined in Section 23(2) of the Act of 1956.

Coming to the second contention of the learned counsel for the petitioners to the effect that as the impugned order is without jurisdiction and the same has been passed in violation of the principles of natural justice is concerned, a bare reading of Section 89 of the Act of 1956 clarifies that where the State Government assigned to any person its right over any minerals, mines or quarries and if for the proper enjoyment of such right, it is necessary that all or any of the powers of the State Government should be exercised by such person, the Collector may by an order in writing, subject to such condition and reservations as he may prescribe, delegate such powers to the person to whom the right has been assigned. The District Collector, in the impugned order, has specifically observed that mining rights have been assigned to the respondent No.5 by the State Government in respect of the land in question.

In such circumstances, this Court is prima facie of the opinion that the District Collector is having the jurisdiction to pass the impugned order.

So far as the contention of the learned counsel for the petitioners regarding violation of the principles of natural justice is concerned, from the impugned order, it is clear that notices have been issued to Devasthan Department as well as the Tehsildar by the District Collector and after providing opportunity of hearing to them, the impugned order has been passed. The persons, who are representing the Doli Mandir in these writ petitions have failed to show that they are also required to give notice by the District Collector in the capacity of representatives of Doli Mandir.

Another contention of the learned counsel for the petitioners to the effect that the writ petition should not be dismissed in view of the fact that notice in SBCWP No.4315/2020 was issued way back in May 2020 and reply to one of these writ petitions has already been filed by the respondent No.5, is not appealing to this Court.

In SBCWP No.4315/2020, this Court simply issued notices to the respondents, however, Mr L.K.Purohit was directed to accept notice on behalf of respondent Nos. 1 to 4. This Court has not taken into consideration the preliminary objection regarding availability of alternate remedy to the petitioners at the time of issuance of notice. This Court has not dealt with preliminary objection at any point of time earlier.

Recently, Hon'ble Supreme Court in Genpact India Private Ltd. vs. Deputy Commissioner of Income Tax & Anr. while reiterating the principle laid down in Commissioner of Income Tax and Ors. vs. Chhabil Dass Agarwal, (2014) 1 SCC 603 and in Authorised Officer, State Bank of Travancore & Anr. vs. Mathew K.C., (2018) 3 SCC 85 has upheld the order of the High Court of dismissing the writ petition on account of availability of alternate remedy and has specifically held that even if a writ petition is admitted, the same can be dismissed on the ground of alternate remedy.

As stated earlier, this Court never dealt with the issue regarding availability of alternate remedy to the petitioners earlier at any point of time.

Learned counsel for the petitioners has also argued that as a matter of fact the land in question belonging to Doli Mandir has never been assigned to the respondent No.5 by the State Government for mining purposes at any point of time, however, this is purely a question of fact whether the land in question is assigned to respondent No.5 for mining purposes by the State Government or not and it would not be appropriate for this Court to give any finding on this aspect of the matter at this stage as this Court is prima facie of the opinion that the writ petitions cannot be entertained in view of availability of alternate remedy to the petitioners.

Certain other issues have been raised by the learned counsel for the petitioners during the course of arguments, however I am refrained from dealing with those issues as the same will be gone into at appropriate stage by the concerned authorities.

In view of the above discussion, these writ petitions challenging the validity of the impugned order dated 10.01.2020 are dismissed on account of alternate remedy of filing appeal available to the petitioners. There shall be no order as to costs.

Stay petitions also stand dismissed.

In the facts and circumstances of the case, if the petitioners prefer an appeal before the appellate authority against the impugned order and if any prayer is made for condonation of delay in filing the appeal, the appellate authority shall consider the same objectively and sympathetically.