Chattisgarh High Court

Smt. Vandana Gupta vs State Of Chhattisgarh on 16 September, 2021

                                       1

                                                                            AFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                             WPC No. 235 of 2020

      Smt. Vandana Gupta S/o Shri Omprakash Gupta Aged About 32
      Years R/o Village Bhanora Balrampur District Balrampur
      Ramanujganj, Chhattisgarh.                    --- Petitioner

                                  Versus

   1. State of Chhattisgarh through The Secretary, Department of Revenue
      Mahanadi Bhawan, New Raipur, District Raipur Chhattisgarh.

   2. The Collector        Balrampur       District    Balrampur     Ramanujganj
      Chhattisgarh.

   3. The Tahsildar        Balrampur       District    Balrampur     Ramanujganj
      Chhattisgarh.

   4. Patiya S/o Late Tumala Aged About 55 Years Cast - Uraon, R/o
      Village Bhanoura, (Khutahanpara) Police Station & Tahsil - Balrampur
      District Balrampur Ramanujganj Chhattisgarh.

   5. Maini Devi W/o Patiya Aged About 53 Years Cast - Uraon, R/o Village
      Bhanoura, (Khutahanpara) Police Station & Tahsil - Balrampur District
      Balrampur Ramanujganj Chhattisgarh.

   6. Kameshwar Giri S/o Mishrilal Shiv Prasad Giri Aged About 60 Years
      Cast Gosai, Village Bhanoura, Police Station And Tahsil Balrampur
      District       Balrampur         Ramanujganj          Chhattisgarh.
                                                       --- Respondents

For the Petitioner : Mr. A. N. Pandey, Advocate. For the State/R-1 to R-3 : Mr. Aditya Bharadwaj, Panel Lawyer for Respondents 4 & 5 : Ms. Varsha Sharma, Advocate.

For respondent no.6        : None



               Hon'ble Shri Justice Goutam Bhaduri

                             Order on Board

16 .09.2021

1. The challenge in this petition is to the order dated

14.09.2018 passed by the Tahsildar, Balrampur (Annexure P-

2) whereby a temporary injunction order was issued against

the petitioner restraining any construction or further

alienation or change of nature of the suit property.

2. Learned counsel for the petitioner would submit that the said

order of temporary injunction of the like nature cannot be

passed in excess of jurisdiction by the Court of Tahsildar. He

relies on a decision of this Court rendered in case of Seraj

Ahmad Vs. State of C.G., 2017 (4) CGLJ 559 and

would submit that the order passed by the Tahsildar,

therefore, is without jurisdiction.

3. Learned Counsel for the State would submit that the order is

appealable, therefore, the petitioner should have filed an

appeal u/s 44 of the Land Revenue Code.

4. Counsel for respondents 4 & 5 prays for time to file reply.

5. No representation is made on behalf of respondent no.6.

6. Considering the small issue involved about the jurisdictional

point, the petition is heard finally. A perusal of the order

which is challenged herein shows that the injunction order

was issued by the Tahsildar on 14.09.2018, relevant paras

thereof is reproduced hereinbelow:

vr% izkjafHkd nLrkosth lk{; ds vkyksd esa bl U;k;ky; }kjk Lo izsj.kk ls oanuk vkseizdk'k tkfr lq.Mh rFkk N0 x0 'kklu dks vukosnd dz- 7 ,oa 8 ds :i esa la;ksftr fd;k tks N0x0 Hkw&jktLo lafgrk 1959 dh /kkjk 32 ,oa 43 ,oa lgifBr flfoy izfdz;k lafgrk 1908 XXXIX (2) ds rgr iznRr vf/kdkjksa dk vuqiz;ksx djrs gq, xzke HkukSjk fLFkr okn Hkwfe [email protected]] [email protected]] [email protected]] [email protected]] ,oa [email protected]] ij leLr fuekZ.k dk;Z ,oa mlds fdlh Hkh izdkj ls varj.k ;k ljapuk esa ifjorZu ds fo:) ,rn~ }kjk vLFkkbZ fu"ks/kkKk tkjh dh tkrh gSA mHk; i{k izdj.k esa U;k;ky; ds vkxkeh vkns'k i;Zar vFkok l{ke U;k;ky; ds vkns'k i;Zar xzke HkukSjk fLFkr okn Hkwfe [email protected]] [email protected]] [email protected]] [email protected]] ,oa [email protected]] ij leLr fuekZ.k dk;Z ,oa mlds fdlh Hkh izdkj ls varj.k ;k ljapuk esa ifjorZu ls fu"ksf/kr fd;s tkrs gSA loZ i{k voxr gks fd vLFkkbZ fu"ks/kkKk dk Hkax fd;k tkuk vFkok mldh voKk n.Muh; vijk/k gSA vkns'k vkt fnukad 14&09&2018 dks U;k;ky; ds gLrk{kj ,oa ineqnzk ls tkjh ,oa U;k;ky; esa mn?kksf"krA

7. Reading of the aforesaid order would show that nature of the

direction issued by the Tahsildar is in the form of injunction

order whereby the entire construction which was to be made

on the landed property was stayed and it was further

directed that the nature of property shall not be changed

and further alienation was also stayed.

8. This Court in Seraj Ahmad Vs. State of Chhattisgarh &

others 2017 (4) C.G.L.J. 559 has held that the order to

grant injunction is surely vested in the jurisdictional Civil

Court and the Revenue Courts cannot grant the order of

injunction and it was held that the revenue order granting

temporary injunction restraining the transfer would be

without jurisdiction and without authority of law. The said

judgment was based on a decision of the Madhya Pradesh

High Court rendered in Maya Lalchandani (Mrs.) Vs.

Board of Revenue 2009 (3) MPLJ 660 . I am also in

respectful agreement with the judgment passed by this Court

in Seraj Ahmad Vs. State of C.G. (Supra) on earlier occasion

and the relevant part of the decision is reproduced herein

below:

2. Learned Counsel for the petitioner submits that the Sub-Divisional Officer (Revenue) has passed order on 10.03.2016 granting temporary injunction for which he has no jurisdiction, therefore, the order passed by the Sub- Divisional Officer (Revenue) is without jurisdiction and without authority of law. He relies upon a decision of the High Court of Madhya Pradesh in the matter of Maya Lalchandani (Mrs.) and others Vs. Board of Revenue and others in which the M.P. High Court has held as under:

"4. After going through the order passed by the learned President, Board of Revenue and taking into consideration the legal provisions, we are of the opinion that the directions sisued in paragraph 7 of the order passed by the Board of Revenue cannot be

allowed to stand. Section 32 of the Land Revenue Code talks of the inherent powers of the Revenue Authorities while Section 43 talks of applicability of the Code of Civil Procedure. It is to be seen from Section 32 that nothing in the Land Revenue Code shall be deemed to limit or otherwise affect the inherent power of the Revenue Court to make such orders as may be necessary to meet the ends of justice or as may be necessary to prevent the abuse of the process of Court. Section 43 simply provides that unless otherwise expressly provided in the Code, the procedure laid down in the Code of Civil Procedure shall, so far as may be, followed in all proceedings under the Code. Section 43 in no case would authorise a Revenue Authority to grant an injunction.

Section 43 simply provides that the procedure laid down in the Code of Civil Procedure so far as may be followed in all proceedings under the Code. It is also to be seen from the provision of the Code of Civil Procedure that an injunction can be granted only by civil Court and by none else. Section 32 of the M.P.

Land Revenue Code only talks of the inherent powers of the Revenue Courts where they are required to make such order as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. The powers under Section 32 can be exercised within the Code itself and not beyond the Code. If the Revenue Authority does not have the power to grant injunction then the Board of Revenue also could not grant injunction."

3. The order to grant injunction is surely vested in the jurisdictional civil court, revenue courts cannot grant order of injunction. Therefore, the order passed by the revenue authority granting temporary injunction restraining transfer following the principle of law laid down in Maya Lalchandani (Supra) is without jurisdiction and without authority of law. It is accordingly set aside. However, the Sub-Divisional officer (Revenue) is directed to take decision on merits after hearing the parties in accordance with law, expeditiously,

within three months from the date of receipt of a copy of this order.

9. Considering the nature of stay order, certainly it would show

that the Tahsildar has exceeded its jurisdiction which is

vested under the Land Revenue Code and therefore, the

order of the nature would be without jurisdiction and without

authority of law. Since the order is without jurisdiction, as

such, the petitioner even if has not availed the remedy of

appeal, this Court in exercise of power under Article 226 of

the Constitution of India can look into such issue when

jurisdictional issue is involved in view of the decision of the

Supreme Court rendered in Whirlpool Corporation

Versus Registrar of Trade Marks, Mumbai (1998) 8

SCC 1 wherein it has been held as under:

14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo quarranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".

15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the

Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.

16. Rashid Ahmed v. Municipal Board, Kairana AIR 1950 SC 163 laid down that existence of an adequate legal remedy was a factor to be taken into consideration in the matter of granting writs. This was followed by another Rashid case, namely, K.S.

Rashid & Son v. Income Tax Investigation Commission AIR 1954 SC 207 which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse or to interfere in a petition under Article 226. This proposition was, however, qualified by the significant words, "unless there are good grounds therefor", which indicated that alternative remedy would not operate as an absolute bar and that writ petition under Article 226 could still be entertained in exceptional cases.

(Emphasis supplied)

10. Further the Supreme Court in Harbanslal Sahnia Versus

Indian Oil Corporation Ltd (2003) 2 SCC 107 Para 7

reiterated the principles laid down in Whirlpool Corpn. V.

Registrar of Trade Marks (supra) and held that inspite of

availability of the alternative remedy, the High Court may

still exercise its writ jurisdiction in at least three

contingencies as observed in Para 7, which reads thus :

7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be

dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. V. Registrar of Trade Marks). The present case attracts applicability of the first two contingencies. More over, as noted, the petitioners' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings.