Triloki And Others vs Sub-Divisional Officer Ikauna ...
2012 Latest Caselaw 3405 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 
Case :- MISC. SINGLE No. - 4279 of 2012
 
Petitioner :- Triloki And Others
 
Respondent :- Sub-Divisional Officer Ikauna Distt.Shravasti And Others
 
Petitioner Counsel :- Rajeiu Kumar Tripathi
 
Respondent Counsel :- C.S.C.,R.N. Gupta
 

 
Hon'ble Anil Kumar,J.

Heard Shri Rajeiu Kumar Tripathi, learned counsel for the petitioners, learned State Counsel as well as Shri R. N. Gupta, learned counsel appearing on behalf of opposite party no.3 and perused the record.

Learned counsel for the respondent submits that in the present case the petitioners have got an efficacious statutory remedy available to them in the statute/Land Revenue Act, 1901 for redressal of their grievances. Keeping in view the said facts as well as the fact that by means of the present writ petition, the petitioners have challenged the impugned order dated 13.7.2006 (Annexure No.1) passed by opposite party no.1/Sub-Divisional Officer, Ikauna, District-Shravasti, as such, the present writ petition is liable to be dismissed on the ground of delay and latches.

Shri Rajeiu Kumar Tripathi, learned counsel for the petitioners, in rebuttal, submits that the impugned order dated 13.7.2006 has been passed without providing any opportunity of hearing to the petitioners, so the same is arbitrary in nature and in violation of principles of natural justice, so in view of the law as laid down by Hon'ble the Apex Court in the case of Whirlpool Corporation vs. Registrar, Trade Marks reported in (1998) 8 SCC 1, the petitioners cannot be delegated to the statutory remedy and the present writ petition should be heard and disposed of on merit by this court.

He further submits that in view of the averments as made in paragraph 29 of the writ petition, the delay and latches in filing the present writ petition thereby challenging the order dated 13.7.2006 may be condoned as the order under challenge is in contravention to the principles of natural justice, so the present writ petition is maintainable under Article 226 of the Constitution of India and should not be dismissed on the said ground. In support of the above argument he placed reliance on the judgment in the case of C/M Adarsh Inter College, Kaushambi and another vs. State of U.P. and another [2010] (111) RD 37.

I have heard learned counsel for the parties and gone through the records.

In the present case, on an application moved by Tehsildar, Ikauna, District-Shravasti dated 22.7.2006, a proceeding under Section 33 read with Section 39 of the Land Revenue Act, 1901 has been initiated, accordingly, a case No.024/2006 "Sarkar vs. Mahabal & Ors." has been registered before the opposite party no.1/Sub-Divisional Officer, Ikauna and after taking into consideration the said fact, the said opposite party passed an order dated 13.7.2006 which is under challenge in the present writ petition.

In view of the arguments raised by learned counsel for the parties, the points to be decided in the present case are:-

Point No.1- whether the petitioner should be delegated to the statutory remedy available to him under Section 219 of the Land Revenue Act or not.

Point No.2- whether the present writ petition is liable to be dismissed on the ground of delay and latches.

Point No.1:-

As per admitted facts of the present case, the order dated 13.7.2006 (Annexure No.1) passed by opposite party no.1 is under challenge in the present writ petition. It is not disputed by learned counsel for the petitioners that petitioners have got a statutory remedy for redressal of their grievances under Section 219 of the Act, however, he submits that as the impugned order is in violation of the principles of natural justice, so the petitioners cannot be delegated to the statutory remedy and the matter should be heard on merit. Further, if the petitioners have to avail the said remedy, they will not get the stay/injunction order because of delay in filing the revision and the petitioners have moved an application for condonation of delay, and the said application is to be decided first.

In view of the abovesaid facts, once it is admitted that there is a statutory remedy available to the petitioners under the L. R. Act, then the same can not be bye passed by them on the ground that they will not get the stay order at the initial stage because first they have to move an application for condonation of, as in the case of Titaghur Paper Mills Company Limited and another Vs. State of Orissa and others (1983 )2 SCC 433 wherein it was held as under:-

"Where a right or liability is created by statute which give special remedy for enforcing it, that must be availed as the said statute provides a complete machinery in order to challenge the impugned action taken therein in the statute itself and not under Article 226 of the Constitution of India."

In the case of Karnataka Chemical Industries and others Vs. Union of India and others (2000) 10 SCC 12, wherein it was held as under:-

"When there is no challenge to the validity of any statutory provision, we see no reason as to why a writ petition should have been filed by passing the alternative remedy which is provided under the statute. On the short ground we dismiss this appeal, vacate the interim orders, direct the payment of the balance amount of duty along with interest @ 15% per annum with yearly rests. It will be open to the appellant to avail of such statutory remedy as may be available to it. If an appeal is filed within four weeks from today, the Department will take a lenient view in condoning the delay."

In the case of Central Coalfilds Limited Vs. State of Jharkhand and others (2005) 7 SCC 492, wherein it was held as under:-

"If there is statutory alternative remedy available to a person under an statute itself, in that case the writ petition should nto be entertained under Article 226 of the Constitution of India and the petitioner is directed to avail the alternative statutory remedy."

In the case of Kanaiyalal Lal Chand Sachdev and others Vs. State of Maharashtra and others (2011) 2 SCC 782, in para Nos. 23 and 24 held as under:-

"Para - 23 - In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the Appellants under Section 17 of the Act. It is well-settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See: Sadhana Lodh v. National Insurance Co. Ltd. and Anr. (2003) 3 SCC 524; Surya Dev Rai v. Ram Chander Rai and Ors. (2003) 6 SCC 675; State Bank of India v. Allied Chemical Laboratories and Anr. (2006) 9 SCC 252.

Para - 24- In City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Ors. (2009) 1 SCC 168, this Court had observed that:

The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether:

(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;

(b) the petition reveals all material facts;

(c)the Petitioner has any alternative or effective remedy for the resolution of the dispute;

(d) person invoking the jurisdiction is guilty of unexplained delay and laches;

(e) ex facie barred by any laws of limitation;

(f) grant of relief is against public policy or barred by any valid law; and host of other factors."

In view of the premises aforesaid, I hold that the order passed by the opposite party no.1 is revisable under Section 219 of the Land Revenue Act and the writ petition to this court should not be ordinarily entertained unless it comes as an exception, the said position does not exist in the present case.

Thus, having considered the facts and circumstances of the case and in view of the discussions as made above, I do not find to be a fit case for exercising the jurisdiction under Article 226 of the Constitution as the petitioners have alternative statutory remedy of filing revision against the order which has been impugned here in the instant writ petition.

Point No.2:-

In the present case, petitioners have explained the delay in filing the present writ petition in paragraph no.29 of the writ petition, the same reads as under:-

"That as has already been mentioned herein above that petitioners are illiterate persons of village background and they were not in the knowledge of passing of impugned order, passed behind the back of the petitioner without providing any opportunity of hearing, hence petitioners could not approach earlier and as such if there is any delay and latches same is liable to be condoned in the interest of justice."

After hearing learned counsel for petitioners and learned Standing Counsel and going through the record as well as the averments as made in paragraph no.29 of the present writ petition, I do not find good and sufficient grounds given by petitioner in the instant case in approaching this Court for redressal of her grievances at belated stage in view of which the delay in filing the present writ petition under Article 226 of the Constitution of India can be condoned rather the reasons which have been given by petitioners are not sufficient in view the law as laid down by Hon'ble the Apex Court in the case of Union of India and others Vs. Tarsem Singh, (2008) 8 SCC 648 after relying on the earlier judgment passed in the case of Shivdas Vs. Union of India (2007) 9 SCC 274 the Hon'ble Apex Court in Paragraph 6 has held as under :-

"The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustice, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weights with the High Court in deciding whether or not to exercise such jurisdiction."

In the case of Naresh Kumar Vs. Department of Atomic Energy and Others, JT 2010 (7) SC 77, Hon'ble Supreme Court has held as under :-

"If an employee keeps making representation after representation which are consistently rejected then the appellant cannot claim any relief on that ground. We are unable to find any merit in the contention raised before us and we are also of the view that the High Court was not in error while dismissing the writ petition even on the ground of unexplained delay and laches."

Recently, in the case of Kanaiyalal Lal Chand Sachdev and others Vs. State of Maharashtra and others (2011) 2 SCC 782, in para No.24 held as under: -

Para - 24- "In City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Ors. (2009) 1 SCC 168, this Court had observed that:

The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: -

(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;

(b) the petition reveals all material facts;

(c) the Petitioner has any alternative or effective remedy for the resolution of the dispute;

(d) person invoking the jurisdiction is guilty of unexplained delay and laches;

(e) ex facie barred by any laws of limitation;

(f) grant of relief is against public policy or barred by any valid law; and host of other factor.

In view of the abovesaid facts as well as settled proposition of law, I do not find any good ground and sufficient reasons to entertain the present writ petition under Article 226 of the Constitution of India and the petitioners cannot drive any benefit of law cited in the case of Whirlpool Corporation (supra) as the same is not applicable to the facts and circumstances of the present case.

For the foregoing reasons, the writ petition is dismissed on the ground of availability of alternative statutory remedy.

However, as prayed, the petitioners if so advised may approach appropriate forum for redressal of their grievances which they have raised in the present writ petition.

Order Date :- 7.8.2012

Mahesh