The Jammu & Kashmir High Court opined that when a statutorily and equally efficacious remedy is available, then the writ petition should not be entertained. It was re-iterated that where a right or liability is created by a statute, and the statute provides for a speedy remedy for enforcing the same, that remedy alone should be availed. Even though an alternate remedy is not a bar to entertaining a writ petition, there are only a few circumstances such as the enforcement of the fundamental rights, violation of the principle of natural justice, or where the order under challenge is passed without jurisdiction is ultra vires, when such writ petition can be entertained.
Brief Facts:
The present writ petition is filed against an order passed by the Collector under Land Revenue Act vide which an interim direction was vacated without hearing the Petitioner. It was contended that Respondent No.2 could have dismissed the petition in default but instead, an order on merits was passed without hearing the Petitioner, which goes against the law. The legality of the order was challenged on the grounds of natural justice.
Brief Background of the Case:
The case of the Petitioner is that Petitioner is a widow whose father-in-law died in 2021. After his death, Petitioner succeeded over the estate owned by the father-in-law. The estate was gifted to the father-in-law and the same was reflected in the record of rights in equal shares along with two other shareholders.
Contentions of the Petitioner:
The Petitioner contended that Respondent No.3 connived with the Revenue Authority to get the revenue entry in his name without any competency. It was submitted that a petition was filed by the Petitioner indicating the fact that Girdawar circle Muthi changed the revenue entry without any competency and incorporated the name of Respondent No.3 without conducting any spot enquiry or hearing the actual owner. An order was then passed by Respondent No.2 restraining Respondent No.3 from interfering with the possession of the Petitioner. It was also argued that the revenue entry could only be corrected by the Revenue Officer as per Section 26 of the Land Revenue Act,1996.
Contentions of the Respondent:
The Respondent argued that the present petition was not maintainable as an alternate and efficacious remedy is available under the Land Revenue Act itself.
Observations of the Court:
The Court observed that as per Section 11 of the Land Revenue act, any appeal against the order passed by the Collector, whether original or appellate side, lies before the Divisional Commissioner. The present writ petition cannot be said to be maintainable as an alternate remedy is provided in the Land Revenue Act,1996 itself.
The High Court opined that when a statutorily and equally efficacious remedy is available, then the writ petition should not be entertained. It was re-iterated that where a right or liability is created by a statute, and the statute provides for a speedy remedy for enforcing the same, that remedy alone should be availed. Even though an alternate remedy is not a bar to entertaining a writ petition, there are only a few circumstances such as the enforcement of the fundamental rights, violation of the principle of natural justice, or where the order under challenge is passed without jurisdiction is ultra vires, when such writ petition can be entertained.
The Bench noted that in the present case, the Petitioner himself chose not to appear and present his case. An adequate opportunity was provided to the Petitioner to appear and present his case. Therefore, there was no violation of the principles of natural justice while passing the order.
The decision of the Court:
Based on the reasons, the Petitioner was relegated to the alternative remedy of filing of appeal before the Divisional Commissioner, and accordingly, the writ petition was dismissed.
Case Title: Bindu Singh Jamwal v. UT of J&K & Ors.
Coram: Hon’ble Mr. Justice Wasim Sadiq Nargal
Case No.: WP (C) No. 2588/2022
Advocate for Appellant: Adv. Mr. G.S. Thakur
Advocate for Respondent: Adv. Mr. R.S. Kotwal
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