(Oral)
1. Heard Sri Sudeep Seth, learned Senior Advocate, assisted by Sri Sridhar Awasthi, learned counsel for the petitioners, Sri Upendra Singh, learned Standing Counsel, Sri Ajay Pratap Singh, learned counsel appearing on behalf of respondent nos.3 and 4 and Sri Pankaj Gupta, learned counsel appearing on behalf of the respondent no.6.
2. This petition has been filed challenging the order dated 02.03.2020 passed by the Additional Commissioner (Judicial), Ayodhya Mandal, Ayodhya in Appeal No.01825 of 2019: The Thauri Educational Trust Vs. Intermediate College, Thauri and others, and also the ex parte order dated 06.01.2015 passed by the respondent no.2-Sub Divisional Magistrate, Musafirkhana, District Amethi in Case No.285/38/60/107/32 under Section 229-B of the U.P.Z.A. & L.R. Act: Intermediate College Thauri Vs. State of U.P. and others. The petitioner also prays for mandamus to be issued to the Sub-Divisional Magistrate to record the name of "The Thauri Educational Trust through its Manager, Shri Suresh Chandra Srivastava, son of Late Girija Prasad Srivastava" in the revenue records by mutation, in place of "Educational Trust Thauri Interimediate College, through Manager, Shri Rajeshwar Pratap Singh, son of Virendra Nath Singh", with respect to Gata No.488, 889 and 2305 situated in Village Thauri, Pargana Jagdishpur, Tehsil Musafirkhana, District Amethi.
3. It has been submitted by learned counsel for the petitioners that the order dated 02.03.2020 passed in Revision has ignored the order dated 05.03.2019 passed in Writ Petition No.6321 (M/S) of 2019 and the order dated 08.04.2019 passed in Special Appeal No.124 of 2019: Rajeshwar Pratap Singh Vs. Suresh Chandra Srivastava and others, where the Division Bench has affirmed the interim order granted by the Writ Court and directed that till the writ petition is decided, status quo with respect to the property of the Trust, as it existed on that day to be maintained.
4. Learned counsel for the petitioners has also referred to another order passed by this Court in Writ Petition No.17339 (M/S) of 2020: Executive Committee of "The Thauri Educational Trust" & Another Vs. Union of India Through Secretary Ministry of Road Transport & National Highways and others, wherein the Division Bench had observed that the dispute regarding the Society was pending in Writ Petition No.6321 (M/S) of 2019 and in case compensation amount is disbursed to Rajeshwar Pratap Singh on acquisition of land of the Trust, the said writ petition would become infructuous and it will also lead to multiplicity of the proceedings and it will be very difficult to recover the compensation of more than Rs.3 crores from the respondent no.4, who is a private party. This Court while granting time to the respondents in the said writ petition had directed the operation of the notice dated 14.09.2020 challenged in the petition to remain stayed during the pendency of the writ petition. The notice dated 14.09.2020 was issued under National Highways Act, 1956 to the respondent no.4 to complete formalities for payment of compensation amount for the land acquired for national highway.
5. It has been submitted that the orders of this Court were mentioned in the pleadings and annexed with the Revision No.01825 of 2019. It has also been submitted that the Additional Commissioner had earlier by an order dated 07.01.2020 condoned the delay in filing of the Revision by the petitioners against the order dated 06.01.2015, but by the order impugned dated 02.03.2020 the Additional Commissioner had allowed the objections of the private respondent and recalled his order dated 07.01.2020 and rejected the Revision on merits and also on delay, and at the same time has also observed that since consolidation operations are underway in the village concerned, the matter be decided by the consolidation courts and the case before he Revenue Courts to have been abated under Section 4/5 of the Consolidation of Holdings Act.
6. Learned Senior Advocate has pointed out other errors also in the order dated 02.03.2020, which this Court does not find appropriate to mention in detail in this order as they are not germane to the order proposed to be passed by this Court.
7. A preliminary objection has been raised by the counsel for the Gaon Sabha and the State Respondent that against the order dated 02.03.2020 passed by the Additional Commissioner (Judicial), a Second Appeal lies before the Board of Revenue under Section 331(4) read with Schedule I of the U.P. Z.A. & L.R. Act, corresponding Sections 206, 208 of the IIIrd Schedule of the U.P. Revenue Code.
8. It has also pointed out that since consolidation operations have begun in the village concerned, the remedy for the petitioner lies before the Consolidation Officer. If he has any grievance regarding title being wrongly declared, he may file his objection under Section 9 before the Consolidation Officer.
9. Learned Senior Advocate on the other hand has pointed out that it has been held by Hon'ble Supreme Court in several judgments that alternative remedy is not always a bar to exercise writ jurisdiction.
10. Learned counsel for the petitioners has referred to the judgment of Hon'ble Supreme Court in Balkrishna Ram Vs. Union of India and another, 2020 (2) SCC 442, wherein the statutory remedy before the Supreme Court was available against the order passed by the Armed Forces Tribunal, instead of before the High Court.
11. Learned counsel for the petitioners has referred to paragraph-11 of the judgment which refers to Constitution Bench observation in L. Chandra Kumar Vs. Union of India; 1997 (3) SCC 261, and also paragraph-14 of the judgment, which has been read out to say that the writ court normally refrains from exercising its extraordinary power if the petitioner has an alternative efficacious remedy. The existence of such remedy however does not mean that the jurisdiction of the High Court is ousted. At the same time, it is a well settled principle that such jurisdiction should not be exercised when there is an alternative remedy available. The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by AFT. One must also remember that the alternative remedy must be efficacious and in case of a Non-Commissioned Officer (NCO), or a Junior Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it would be open for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the writ court is denuded of its jurisdiction to entertain such writ petitions which is against the law laid down in L. Chandra Kumar.
12. Learned counsel for the petitioners has also referred to two orders of Hon'ble Supreme Court, namely, State of Tripura Vs. Manoranjan Chakraborty and others; 2001 (10) SCC 740, where the Supreme Court entertained the Appeal of the State against the judgment of High Court which had struck down the provisos to Section 20 (1) and Section 21 (2) of the Tripura Sales Tax Act. The Hon'ble Supreme Court observed in paragraph-4 that the provisions impugned before the High Court were valid and also observed that when gross injustice is done by an order of the Writ Court then the Supreme Court should interfere notwithstanding the alternative remedy which may be available by way of an Appeal under Section 20 or Revision under Section 21. A Writ Court can in an appropriate case exercise its jurisdiction to do substantive justice.
13. Learned counsel for the petitioners has also placed reliance upon another order of Hon'ble Supreme Court in Union of India Vs. State of Haryana and another; 2000 (10) SCC 482, where the Supreme Court considered the grievance of the Union of India that the alternative remedy is not an appropriate remedy. The Union of India in discharge of its statutory functions under the Indian Telegraph Act, 1885, for the purpose of providing telecommunication facilities was providing telephone connections to the subscribers. The respondents were the respective States of Haryana, Orissa, Uttar Pradesh and Andhra Pradesh. In their respective Sales Tax statutes, the State Governments had made amendments so as to redefine the words "purchase" and "sale" in order to bring those in conformity with the definitions given in Article 366 of the Constitution. As a result of which, respective Assessing Authorities under the amended laws started assessing sales tax on the rentals being charged for supply of telephones. The Union of India had filed several writ petitions in the respective High Courts challenging the levy. The writ petitions were dismissed by the High Court on the ground of alternative remedy being available in the form of statutory Appeal. The statutory Appeal being before the officers of Sales Tax Department was also not found efficacious.
The Supreme Court had observed that the question raised by the Union of India in its writ petitions were fundamental in character, as the respective Sales Tax statute on amendment had redefined the terms "purchase" and "sale". The Supreme Court had further observed that the question raised was pristinely legal which required determination as to whether the provision of telephone connection and its instrument amounted to "sale" and even so why the Union of India was not exempted from the payment of Sales Tax under the respective Statute.
14. This Court has carefully perused the order passed by the Hon'ble Supreme Court in the case of Union of India and another Vs. State of Haryana and another (supra), which is only an order entertaining and allowing the SLP and directing the respective High Courts to consider the grievance raised by the Union of India on its merits.
15. As is evident from the narration of the facts made by this Court hereinabove, the order passed by Hon'ble Supreme Court in the aforecited case of Union of India Vs. State of Haryana (supra) was passed as Union of India had questioned the very applicability of Sales Tax to action taken by Union of India under its statutory liability under the Telegraph Act. Such an order which is not a judgment passed in the peculiar facts and circumstances of the case, cannot be said to be laying down the law that even when statutory remedy is available which is equally efficacious, the High Court should entertain a writ petition.
16. This Court has also carefully examined and perused the order passed by Hon'ble Supreme Court in the case of State of Tripura Vs. Manoranjan Chakraborty and others (supra), where the statutory requirement of pre-deposit for entertaining the Appeal or Revision against the order passed by the Assessing Authority was held to be invalid. The Hon'ble Supreme Court observed that the statutory provisions are valid as the question of pre-deposit being a condition for entertainment of Appeal or Revision had already been decided by the Supreme Court in Gujarat Agro Industries Co. Ltd. Vs. Municipal Corporation of the City of Ahmedabad; 1999 (4) SCC 468 and also in the case of Shyam Kishore Vs. Municipal Corporation of Delhi; 1993 (1) SCC 22.
The order of the Supreme Court clearly was in relation to an order passed by the High Court which had struck down the provisos relating to pre-deposits in Tripura Sales Tax Act. The facts of the case warranted the observations made by Hon'ble Supreme Court in paragraph-4 that notwithstanding the alternative remedy which may be available by way of an Appeal, a Writ Court can in an appropriate case exercise its jurisdiction to do substantive justice.
17. This Court has also carefully perused the judgment of Hon'ble Supreme Court in Balkrishna Ram Vs. Union of India and Another (supra). The Supreme Court was considering the question whether the writ jurisdiction can be exercised in respect of the orders passed by the AFT since Appeal lies to the Supreme Court against the orders of the AFT as per the provisions of the Act of 2007. The Supreme Court relied upon the judgment of L. Chandra Kumar Vs. Union of India (supra), to observe that the High Court under Article 226 exercises a Constitutional power of judicial review which is a fundamental and basic feature of the Constitution, and in case of Non-Commissioned Officers and Junior Commissioned Officers, if such officers approach the High Court against the order of the AFT, they should not be asked by the High Court to approach the Supreme Court as per the AFT Act of 2007.
18. The judgment of Hon'ble Supreme Court in the said case of Balkrishna Ram (supra), had been rendered taking into account the judgment of Constitution Bench in the case of L. Chandra Kumar Vs. Union of India (supra), where the Court has clearly stated that the power of judicial review vests with the High Court even with regard to orders passed by Central Administrative Tribunals and this power is part of the basic structure of the Constitution vested in the High Court, and could not be taken away by statutory provisions as mentioned in the unamended Administrative Tribunals Act 1985.
The Hon'ble Supreme Court in the aforecited judgment has not held that in every case where statutory remedy is available which is equally efficacious, the Writ Court should entertain a challenge by a litigant.
19. This Court is bound by the observations made by Hon'ble Supreme Court in the case of N.P. Ponnuswami vs. Returning Officer, AIR 1952 SC 64, where the Supreme Court has observed that where rights and liabilities are created under the Statute and the remedy is provided in the Statute itself, the litigant should first approach the Statutory Appellate Authority before approaching the High Court in writ jurisdiction.
20. In this case, the petitioners' rights and liabilities have been determined under the U.P.Z.A. & L.R. Act, now replaced with U.P. Revenue Code, and a statutory remedy has already been provided in the Schedule attached to the said Statute.
21. This Court does not find from the order of the Additional Commissioner (Judicial) impugned in this case that gross injustice has resulted for this Court to exercise its extraordinary jurisdiction of judicial review as the Additional Commissioner (Judicial) while rejecting the First Appeal of the petitioner, has observed that consolidation operations have begun in the village concerned and it shall be open for the petitioner to approach the consolidation courts under the appropriate sections of the Consolidation of Holdings Act.
22. The effect of Section 5(2)(a) of the Consolidation of Holdings Act has been considered by Hon'ble Supreme Court in the judgment rendered in Mool Chand and others Vs. Deputy Director of Consolidation and others ; 1995 (5) SCC 631, held in paragraph 9 and 23 that suits or proceedings relating to declaration of right or interest in the land lying in the consolidation area shall stand abated. The Supreme Court had relied upon its earlier decision in the case of Ram Adhar Vs. Ram Roop Singh; 1968 (2) SCR 95; Chattar Singh and others Vs. Thakur Pal Singh 1975 (4) SCC 457; Satyanarayan Prasad Sah and others Vs. State of Bihar and another 1980 Supp SCC 474; Bibi Rahmani Khatoon and others Vs. Harkoo Gope and others 1981 (3) SCC 173.
23. This writ petition is dismissed on the ground of statutory remedy alone being available to the petitioner.
24. It shall be open for the petitioner to raise all his claims before the Consolidation Courts under the Consolidation of Holdings Act.
Order Date :- 3.2.2021 Rahul