Kamal Narayan Goswami vs Akhilesh Puri Goswami and Others

Satish K. Agnihotri, J.—The petitioner, by this petition, impugns the legality and validity of the order dated 29-11-2007 (Annexure P-l) passed by the Tehsildar, Rajim, whereby stay of the construction on the disputed land bearing Khasra No. 42/1 area of 18.110 hectare within the boundary of temple admeasuring 246.5 x 115 = 28347.5 situated at Rajim, granted on 12-10-2007 was declined to be vacated.

The petitioner challenges the impugned order on the ground that the same has been passed in exercise of power under the provisions of the Chhattisgarh Land Revenue Code, 1959 (for short "the Code, 1959"). The Tehsildar has no jurisdiction to pass such an order directing stay of the construction on the disputed property.

Shri Sharma, learned Counsel appearing for the petitioner, would submit that since the order is without jurisdiction, the same is not appealable under the provisions of the Code, 1959. The impugned order was purportedly passed under the provisions of Section 248 of the Code, 1959. The said provision applies in case of taking or remaining in possession of any unoccupied land, abadi, service land or any other which has been set apart for any special purpose u/s 237 or property of the Government etc. The land was in lawful possession of the petitioner/Trust and the construction was for the benefit of the deity. The Civil Court alone has jurisdiction.

Per contra, Shri Harit, learned Dy. Advocate General appearing on behalf of the State/respondent No. 23 and Shri Prajapati, learned Counsel appearing on behalf of respondent Nos. 1 to 22, would submit that the order passed by the Tehsildar is appealable before the superior Revenue Authorities under the provisions of Section 44 of the Code, 1959. The petitioner could question the validity of the order on any ground including wrong exercise of jurisdiction. The property in dispute was prohibited land contemplated under provisions of Section 248 of the Code, 1959.

I have heard rival contentions of the learned Counsel appearing for the respective parties, perused the pleadings and the documents appended thereto. Without expressing any opinion on the merit of the case, it is found that any order passed by the Tehsildar is appealable u/s 44 of the Code, 1959. It is trite law that a party cannot decide as to whether the order is without jurisdiction and nullity till it is set aside by the Superior Authority holding that the order passed was without jurisdiction. [See Rafique Bibi (D) by Lrs. Vs. Sayed Waliuddin (D) by Lrs. and Others, , Para 8 and Balvant N. Viswamitra and Others Vs. Yadav Sadashiv Mule (dead) through Lrs. and Others, , Paras 9 and 20]. (Also see the order dated 2nd May, 2006 passed by this Court in W.P. No. 1336/2003, Ram Kishore Dubey and Ors. v. State of Chhattisgarh and Ors.). Section 44 of the Code, 1959 reads as under:

Appeal and Appellate Authorities.- (1) Save where it has been otherwise provided, an appeal shall lie from every original order under this Code or the rules made thereunder:

(a) if such order is passed by any Revenue Officer subordinate to the Sub-Divisional Officer, whether or not the officer passing the order is invested with the powers of the Collector to the Sub Divisional Officer;

(b) if such order is passed by the Sub Divisional Officer, whether or not invested with the powers of the Collector - to the Collector;

(c) if such order is passed by any Revenue Officer subordinate to the Settlement Officer - to the Settlement Officer;

(d) if such order is passed by any Revenue Officer in respect of whom a direction has been issued under Sub-section (3) of Section 12 or Sub-section (2) of Section 21 - to such Revenue Officer as the State Government may direct.

(e) if such order is passed by a Collector whether exercising the powers of Collector or Settlement Officer, during the currency of the term of settlement - to the Commissioner;

(f) if such order is passed by a Settlement Officer, whether exercising the powers of Settlement Officer or the powers of a Collector in connection with any settlement operation unless otherwise expressly provided - to the Settlement Commissioner;

(g) if such order is passed by the Commissioner or Settlement Commissioner- to the Board.

(2) Save as otherwise provided a second appeal shall lie against every order passed in first appeal under this Code or the rules made thereunder:

(i) by the Sub Divisional Officer or the Collector to the Commissioner;

(ii) by the Settlement Officer to the Settlement Commissioner;

(iii) by the Commissioner to the Board:

(a) if the original order has in the first appeal been varied or reversed otherwise than in a matter of cost; or

(b) on any of the following grounds and no other, namely:

(i) that the order is contrary to law or usage having the force of law; or

(ii) that the order has failed to determine some material issue of law or usage having force of law; or

(iii) that there has been a substantial ceror or defect in the procedure as prescribed by this Code, which may have produced error or defect in the decision of the case upon merits.

(3) An order passed in review varying or reversing any order shall be appealable in like manner as the original order.

The jurisdiction of Tehsildar depends on the facts and nature of the land in issue. The nature of the land involves disputed question of facts. Thus, the same also cannot be considered in writ jurisdiction.

On the question of availability of alternative remedy the Hon''ble Supreme Court in the matter of State of H.P. and Ors. v. Gujarat Ambuja Cements and Anr. (2005) 6 SCC 499, observed as under:

We shall first deal with the plea regarding alternative remedy as raised by the appellant State. 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 of 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 the 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 extra-ordinary jurisdiction.

In G. Veerappa Pillai v. Raman & Raman Ltd., CCE v. Dunlop India Ltd., Ramendra Kishore Biswas v. State of Tripura, Shivgonda Anna Patil v. State of Maharashtra, C.A. Abraham v. ITO, Titaghur Paper Mills Co. Ltd. v. State of Orissa, H.B. Gandhi v. Gopi Nath and Sons, Whirlpool Corporation v. Registrar of Trade Marks, Tin Plate Co. of India Ltd. v. State of Bihar, Sheela Devi v. Jaspal Singh and Punjab National Bank v. O.C. Krishnan, this Court held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction.

Further applying the said ratio in the matter of U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and Another, , the Supreme Court observed as under:

In U.P. State Bridge Corporation Ltd. v. U.P. Rajya Setu Nigam S. Karamchari Sangh, it was held that when the dispute relates to enforcement of a right or obligation under the statute and specific remedy is, therefore, provided under the statute, the High Court should not deviate from the general view and interfere under Article 226 except when a very strong case is made out for making a departure. The person who insists upon such remedy can avail of the process as provided under the statute. To the same effect are the decisions in Premier Automobiles Ltd. v. Kamlekar Shantaram Wadke, Rajasthan SRTC v. Krishna Kant, Chandrakant Tukaram Nikam v. Municipal Corporation of Ahmedabad and in Scooters India v. Vijai E.V. Eldred.

In another decision on the concept of maintainability of writ petition vis-a-vis availability of alternative remedy, the Supreme Court in the matter of Secretary, U.P. High School and Intermediate Education, Allahabad and Another Vs. H.K. Lal, , observed as under:

From the records it is borne out that the question as to whether the respondent has a legal right to alter his date of birth recorded in the certificate granted by the Board was pending consideration before the Appellate Court. The writ petition filed by the respondent should, therefore, not have been entertained particularly in view of the fact that the appeal thereagainst was pending. Writ jurisdiction is discretionary jurisdiction and should not ordinarily be exercised if there is an alternative remedy.

A common thread running into the dicta laid down by the Supreme Court in the aforementioned cases is that, normally the High Court should not interfere if there is an adequate efficacious alternative remedy where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedy before resorting to writ jurisdiction, except when a very strong case is made out for making a departure.

Applying the well settled dicta laid down by the Supreme Court on the issue of availability of alternative remedy to the facts of the case, wherein, the petitioner has challenged the order of Tehsildar as without jurisdiction can also be considered by the Statutory Appellate Authority. No strong case has been made out for making for out a departure from normal rules. Thus, this petition is dismissed as not maintainable, in view of the availability of statutory alternative remedy. However, it is open to the petitioner to take recourse to statutory alternative forum that may be available to him, if so advised. No order as to costs.