Rajesh Sharma vs State of Madhya Pradesh and Another

Hon. Shri Justice Sujoy Paul

By invoking the jurisdiction of this Court under Article 226 of the Constitution, the petitioner has prayed for quashing of order Annexure P-1 and prayed for refund of amount of Rs. 1,80,000/- along with interest. Petitioner''s case is that for extraction of black stone a quarry lease was granted to the petitioner in survey No. 272 in village Bhattpura Brahmin (Gwalior) for 10 years from 14.12.2006 to 13.12.2016. An agreement in this regard was entered into between the parties. On 28.09.2011, the petitioner filed an application for transfer of lease and deposited the amount of Rs. 1,80,000/- as transfer fees. On 07.10.2011, petitioner filed another application praying for withdrawal of earlier application for transfer of lease. On 12.03.2012, notice was issued to the petitioner as to why lease be not cancelled. Petitioner, in turn, filed his reply to the said notice. By impugned order Annexure P-1 dated 20.06.2012, respondent No. 2 directed forfeiture of the amount of Rs. 1,80,000/- deposited by the petitioner which is challenged in the present case.

Shri N.K. Gupta, learned counsel for the petitioner, submits that respondents have no authority of law to forfeit the amount of Rs. 1,80,000/- and accordingly, this order is bad in law.

Per Contra, Smt. Nidhi Patankar, learned Government counsel, raised a preliminary objection about tenability of this matter because of availability of statutory efficacious alternative remedy in Rule 57 of Madhya Pradesh Minor Mineral Rules, 1996. Apart from this, on merits also the action and order Annexure P-1 is justified.

I have heard the learned counsel for the parties at length.

In the considered opinion of this Court, the first question needs to be decided is whether this petition should be entertained on merits or the petitioner could be relegated to avail the alternative remedy. No doubt that as per settled legal position, despite availability of alternative remedy, this Court can entertain writ petition in certain situations. Those situations are where the impugned order is without authority of law/jurisdiction, principles of natural justice are grossly violated, vires of enabling provision is called in question etc. However, in catena of judgments, the Apex Court has held that question of entertainability of a petition despite alternative remedy will depend on the facts and circumstances of a case. Thus, it is a judicial discretion of a writ Court to entertain a petition in the facts and circumstances of the case and there is no compulsion to do the same. In the present case, it is not in dispute that there exists a statutory remedy under Rule 57 of the Madhya Pradesh Minor Mineral Rules, 1996.

Shri Gupta while arguing the matter has not disputed the aforesaid contention of Smt. Patankar that there exists an alternative remedy. His only contention is that there is no enabling provision to forfeit the amount in question.

In the considered opinion of this Court, the impugned order may be erroneous order but it cannot be said to be an order without jurisdiction. It is not argued that the authority who has issued the order has no jurisdiction. In my opinion, whether while passing the impugned order, the reasons assigned are justified or not, the amount could be forfeited or not, can always be decided by the appellate authority. Petitioner will not suffer any irreparable loss if he is relegated to avail the remedy of appeal. In view of specific remedy available to the petitioner, I do not propose to enter into the merits of the matter. I deem it proper to relegate the petitioner to avail the said remedy.

Accordingly, this petition is not entertained because of availability of alternative remedy. The petitioner may prefer an appeal within 15 days from the date of receiving the certified copy of this order before the competent appellate authority. If the said appeal is preferred within the aforesaid time, the appellate authority shall deal with it on merits in accordance with law and impediment of delay will not come in the way of the petitioner. With the aforesaid and without expressing any opinion on the merits and entitlement of the petitioner, petition is disposed of.