Ajay Kumar Sangi vs Unioin Of India
2010 Latest Caselaw 3390 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

            W.P.(C)     No.   12188/2009

%                       Judgment delivered on:20.7.2010

Ajay Kumar Sanghi                   ...... Petitioner

      Through: Mr.Yashraj Singh Deora for petitioners.

                  versus

Union of India & Ors.               ..... Respondents

            Through:    Mr. Puneet Taneja for respondent

                  W.P.(C)     No.   1017/2010


Sanghi Bros. & Anr.                       ...... Petitioners

      Through: Mr.Yashraj Singh Deora for petitioners.

                  versus

Union of India & Ors.               ..... Respondents

            Through:    Mr. Puneet Taneja for respondent.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.    Whether the Reporters of local papers may            Yes




W.P© 12188/2009                             Page 1 of 27
       be allowed to see the judgment?

2.    To be referred to Reporter or not?                  Yes

3.    Whether the judgment should be reported Yes

      in the Digest?


KAILASH GAMBHIR, J.

*

The matter has been received on transfer.

The matter is taken up for final hearing.

1. This order shall dispose of two writ petitions

bearing No. W.P.(C) No. 1017/2010 and W.P.(C) No.

12188/2009 filed by the petitioners. W.P.(C)

No.1017/2010 relates to Khasra Nos. 104/2(0-1), 105/2(4-

11) and 106 (1-14), Revenue Estate Village Tajpul,

Mathura Road, Delhi while W.P.(C) No. 12188/2009

relates to Khasra No. 97 & 98/2, Revenue Estate Tajpul

Village, Mathura Road, Delhi.

2. In the writ petition (W.P.(C) No. 1017/2010)

filed under Article 226 of the Constitution of India, the

petitioners seek quashing of order and decree dated

29.1.1981 passed by the learned Revenue Assistant in

Case No. 127/RA/80. The petitioners also seek quashing

of all revenue entries made pursuant to the said order

and decree dated 29.1.1981, reflecting Gaon Sabha as

owner of property bearing Khasra No. 104/2, 105/2 and

106 of Village Tajpul. The petitioners also seek directions

to direct the respondents to record the name of the

petitioners in the revenue records as owners of property

bearing Khasra No. 104/2, 105/2 and 106 of Village

Tajpul. In W.P.(C) No. 12188/2009, the petitioner seeks

quashing of order and decree dated 29.5.1981 passed in

Case No. 87/RA/80. The petitioner also seeks quashing of

all the revenue entries made pursuant to order and

decree dated 29.5.1981, reflecting Gaon Sabha as owner

of property bearing Khasra No. 97 and 98/2 of village

Tajpul. The petitioner also seeks directions to direct the

respondents to correct the revenue records and to record

the name of the petitioner along with the co-owners as

owner of property bearing Khasra No.97 and 98/2 of

Village Tajpul.

3. In W.P.(C) No. 12188/2009 the petitioner Ajay

Kumar Sanghi has claimed to be the owner of the land

measuring 6 Bighas 4 Biswa forming part of Khasra No.

97, 98/2, situated on Main Mathura Road in the Revenue

Estate of Tajpul, Delhi by virtue of sale deed dated

21.10.1970 duly registered in the office of the Sub-

Registrar, while in W.P.(C) No.1017/2010 the petitioners

claim themselves to be the owners of piece of land

measuring 6 Bighas 6 Biswa forming part of Khasra No.

106, 105/2, 104/2 situated on the main Mathura Road in

Revenue Estate of Tajpul, Delhi.

4. The main grievance raised by the petitioners

in both the writ petitions is that they were in peaceful

possession of the said land in question since 1970 and it

is only when the Government of NCT of Delhi had taken a

stand in their counter affidavit in W.P.(C) No. 10518/2009

the petitioners came to derive knowledge of the fact that

the decree against them had been passed under Section

81 of the Delhi Land Reforms Act without their

knowledge. The petitioners further averred that in the

year 2009, Delhi Police took possession of the land

bearing Khasra No. 97 on the assumption that the said

land belongs to Gaon Sabha and after having learnt the

same the petitioner Ajay Kumar Sanghi had filed a writ

petition bearing W.P.(C) No. 7641/2009 against the Delhi

Police for unauthorized possession of the said land. It is

further stated by the petitioners that during the

pendency of the said petition (W.P.(C) No.7641/2009) the

Government of NCT of Delhi initiated land acquisition

proceedings by issuing notification under Section 4 & 6 of

the Land Acquisition Act to acquire the said land in

question. It is the said land acquisition proceedings which

were challenged by the petitioner Ajay Kumar Sanghi in

W.P.(C) No. 10518/2009 and it is only in the said

proceedings that the petitioners came to know about the

said ex-parte orders passed by the Revenue Assistant

under Section 81 of the Delhi Land Reforms Act.

Necessary steps thereafter were taken by the said

petitioners to inspect the relevant records of the Revenue

Assistant and after inspection of the same the petitioners

learnt that the notices in the said proceedings under

Section 81 were never served upon them and in fact

were sent to obscure addresses. The petitioners thus

have claimed that under Rule 21B of the Delhi Land

Reforms Rules, 1954 it was mandatory on the part of the

Revenue Assistant to have informed the land owners

before initiating any proceedings under Section 81 of the

said Act. Counsel thus states that the mandate of the

said rule was not followed by the Revenue Assistant and

therefore principles of natural justice have been violated

by the Revenue Assistant.

5. The contention of counsel for the petitioners is

that since principles of natural justice have been violated

in the present case by the concerned Revenue Assistant

therefore, remedy of writ is available to the petitioner.

Counsel has placed reliance on the judgment of the Apex

Court in the case of Whirlpool Corporation Vs.

Registrar of Trade Marks, Mumbai & Ors (1998) 8

SCC 1.

6. Counsel for the petitioners further submits

that in the present case, disputed questions of facts are

not involved as from the impugned order itself it is quite

explicit that the petitioners were not served at their

correct addresses and that this court itself can peruse the

records of the Revenue Assistant so as to reach the

conclusion. Counsel also submits that so far Khasra Nos.

98/2, 104/2 (0-01), 105/2(4-11) and 106(1-14), Revenue

Estate Village Tajpul, Mathura Road, Delhi are concerned,

the same were not even acquired by the Government

under the Land Acquisition Act and the same continued

to be in possession of the petitioners. Counsel further

submits that so far Khasra No. 97 (5-5) is concerned, the

same has been acquired by the Government for the

public purpose of constructing a police station. Counsel

also placed reliance on the judgment of the Apex Court in

the case of Popcorn Entertainment & Anr. Vs. City

Industrial Development Corpn. & Anr. (2007) 9 SCC

593 with special emphasis on paras 22 and 38 which

are reproduced hereunder:-

"He invited our attention to the Whirlpool Corporation Case (supra) wherein this Court has held that there are three clear-cut circumstances wherein a writ petition would be maintainable even in a contractual matter. Firstly, if the action of the respondent is illegal and without jurisdiction, Secondly, if the principles of natural justice have been violated and Thirdly, if the appellants' fundamental rights have been violated.

...................................

It is submitted that the impugned order cannot be sustained also on the ground that there is gross violation of the principles of natural justice in the order. The first violation of natural justice took place when Dr. D.K. Shankaran started his

enquiry. Dr. Shankaran conducted the enquiry without notice to the appellant and without hearing the appellant. The appellant while submitting their reply to the show cause notice specifically sought for an opportunity of hearing, the same was also not granted to the appellant before passing of the final order and on this ground also the impugned order is liable to be set aside. The appellant was not even given the copy of Dr. D.K. Shankaran report for effective reply of show cause notice.

The impugned order is also liable to be quashed as the same is wholly without jurisdiction. Once a concluded contract has been entered into between the parties, the parties cannot be permitted to resile from the same contrary to the express terms of the concluded contract. It has been held in the case of Corporation of the City of Bangalore's case (supra) to the effect that CIDCO has no such right to revoke the concluded agreement and hence any action taken by CIDCO contrary to the express terms of the agreement is wholly without jurisdiction. CIDCO cannot take recourse of Section 23 of the Contract Act alleging that the agreement is opposed to public policy because clearly such right is reserved only to the Courts and it is submitted that authorities themselves cannot take recourse to the said section in order to annul a concluded agreement.

7. Refuting the said submissions of counsel for

the petitioners, counsel for the respondent has placed

reliance on the judgment of the Apex Court in the case of

Mukesh Kumar Agrawal Vs. State of U.P. & Ors.

2009(10) SCALE 534. The contention of the counsel

for the respondent is that in a case where the petitioner

disputes the question of facts and where the statutory

remedy of filing of an appeal is available to the petitioner,

the writ court in such a fact-situation can decline to

exercise its jurisdiction. Counsel submits that the

remedy to assail the impugned order is available to

the petitioners under Section 64 of the Delhi Land

Revenue Act, 1954 and so far correcting the entries of

revenue records are concerned, remedy under Section 27

of the Delhi Land Revenue Act is available to the

petitioners.

8. I have heard learned counsel for the parties.

9. In both the matters the concerned Revenue

Assistant vide orders dated 29.5.1981 and 29.1.1981 had

passed the ejectment order under Section 81 of the Delhi

Reforms Act based on the report of the Halka Patwari

reporting violation on the part of the petitioners using

the land in question for non-agricultural purposes. In both

the matters the petitioners were served by way of

affixation and after recording the ex parte evidence of the

Gaon Sabha, ejectment orders under Section 81 of the

Delhi Land Reforms Act were passed. Section 81 of the

Delhi Land Reforms Act states as under:-

"81. Ejectment for use of land in contravention of the provisions of this Act.- (1) A Bhumidhar or an Asami shall be liable to ejectment on the suit of the Gaon Sabha or the land holder, as the case may be, for using land for any purpose other than a purpose connected with agriculture, horticulture or animal husbandry, which includes pisciculture and poultry farming, and also pay damages equivalent to the cost of works which may be required to render the land capable of use for the said purposes.

(2) Notwithstanding anything contained in sub section (1) the Revenue Assistant also may, on receiving information or on his own motion, eject the Bhumidhar or Asami, as the case may be, and also recover the damages referred to in sub-section (1), after following such procedure as may be prescribed"."

10 . Under Rule 21-B of the Delhi Land Reforms

Rules, 1954 the Revenue Assistant before proceeding

under Section 81 of the Delhi Land Reform Act based on

the report of the Halka Patwari must issue notice to the

parties in L.R. Form 48 and shall call upon them to show

cause why action should not be initiated against them

under Section 81 of the said Act. Rule 21-B of Delhi Land

Reforms Rules is reproduced as under:-

"21-B. Disposal of reports by Revenue Assistant (Section 81) - The Revenue Assistant, on receipt of the report referred to in Rule 21-A or on receipt of information otherwise regarding user of land for non- agricultural purposes shall issue notice to the parties in L.R. Form 48 and shall call upon them to show cause why action should not be taken against them under Section 81".

11 . The principal contention raised by the counsel

for the petitioners is that the said order under Section 81

of the Delhi Land Reforms Act was passed by the

Revenue Assistant without serving a notice as envisaged

under rule 21-B of the Delhi Land Reforms Rules, on any

of the co-owners of the land in question. No notice was

also served, as per the petitioners, under Section 82(2) of

the Delhi Land Reforms Act after passing of the said

decree of ejectment. The petitioners have thus claimed

that the said ejectment orders in both the matters have

been passed in violation of the principles of natural justice

as a result of which the same are rendered illegal and

void in the eyes of law.

12 . Counsel for the respondent on the other hand

submits that the statutory remedy of filing an appeal is

available to the petitioners and without exhausting the

same the petitioners have invoked the jurisdiction of this

Court under Article 226 of the Constitution of India.

Counsel for the respondent also submits that pure

disputed question of facts have been raised by the

petitioners and, therefore, the petitioners should be

relegated to the remedy of either approaching the same

Court or the Appellate Authority.

13 . The Apex Court in the case Whirlpool

Corporation (supra) while dealing with the powers of

the High Court under Article 226 of the Constitution of

India observed 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 provision 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, Qua Warranto 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 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 Ahmad v. Municipal Board, kairana, : [1950]1SCR566 , 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. The Income Tax Investigation Commissioner, : [1954]25ITR167(SC) which reiterated the above proposition and held that where alternative remedy existed, it would be a sound exercise of discretion to refuse 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 circumstances.

17. Specific and clear rule was laid down in State of U.P. v. Mohd. Nooh, : [1958]1SCR595 , as under :

"But this rule requiring the exhaustion of statutory remedies before the Writ will be granted is a rule of policy convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies."

18. This proposition was considered by a Constitution Bench of this Court in A. V. Venkateswaran, Collector of Customs. Bombay v. Ramchand Sobhraj Wadhwani and Anr., : 1983ECR2151D(SC) and was affirmed and followed in the following words:

"The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court".

19. Another Constitution Bench decision in Calcutta Discount co. Ltd. v. Income Tax Officer Companies Distt, I : [1961]41ITR191(SC) laid down :

"Though the writ of prohibition or certiorari will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Court will issue appropriate orders or directions to prevent such

consequences. Writ of certiorari and prohibition can issue against Income Tax Officer acting without jurisdiction Under Section 34 I.T. Act".

20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a Writ Petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.

21. That being so, the High Court was not justified in dismissing the Writ Petition at the initial stage without examining the contention that the show cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the "TRIBUNAL".

14 . Counsel for the petitioners also referred to the

judgment of the Apex Court in the case of Popcorn

Entertainment and Anr. (supra) where the Apex Court

while dealing with the issue of maintainability of the writ

petition under Article 226 of the Constitution of India held

as under:-

"We have given our careful consideration to the rival submissions made by the respective counsel appearing on either side. In our opinion, the High Court has committed a grave mistake by relegating

the appellant to the alternative remedy when clearly in terms of the law laid down by this Court, this was a fit case in which the High Court should have exercised its jurisdiction in order to consider and grant relief to the respective parties. In our opinion, in the instant case, 3 of the 4 grounds on which writ petitions can be entertained in contractual matter were made out and hence it was completely wrong by the High Court to dismiss the writ petitions. In the instant case, 3 grounds as referred to in Whirlpool Corpn. (supra) has been made out and accordingly the writ petition was clearly maintainable and the High Court has committed an error in relegating the appellant to the civil court."

15 . Counsel for the respondent on the other hand

has placed reliance on the judgment of the Apex Court

reported in the case of Mukesh Kumar Agarwal

(supra)with special emphasis on the following para:-

"The appellant in invoking the writ jurisdiction of the High Court Order raised contentions involving disputed questions of fact. Ordinarily, the disputed questions of fact are not determined in a writ petition. We would, however, hasten to add that the same would not mean that the High Court cannot exercise its discretionary writ jurisdiction for determination of disputed questions of fact or only because some dispute had been raised in the writ proceedings itself the same would deter the High Court from exercising its jurisdiction. The appellant has raised pure questions of fact for determination in the writ proceedings in respect whereof the Licensing Authority itself was

required to go into the materials brought on record by both the parties. It is neither denied nor disputed that the order passed by the Licensing Authority cancelling the licence of a dealer is an appellable one. The Appellate Authority is entitled to go into the questions of both law and fact. The High Court, therefore, in our opinion, cannot be said to have committed any error in refusing to entertain the writ petition. It is, thus, not a case where the ratio laid in Whirlpool (supra) is applicable."

16 . There cannot be any dispute with the legal

position as enunciated by the Apex Court in the above

judgments. The power of the High Court under Article 226

of the Constitution of India is very wide and that is the

reason the Apex Court in a catena of judgments has put a

note of caution by saying that the plentitude of the

powers of the High Court under Article 226 of the

Constitution of India requires the High Court to exercise

the same under exceptional and rare circumstances.

Undoubtedly, wherever there has been a violation of the

principles of natural justice or the writ petition has been

filed to seek enforcement of the fundamental rights or

where the proceedings are wholly without jurisdiction or

vires of the Act are under challenge, the High Court in the

given facts of the case can exercise jurisdiction under

Article 226 of the Constitution of India. There also cannot

be any dispute that even where the alternative remedy is

available to the petitioner there also such alternative

remedy would not operate as an absolute bar but such an

alternative remedy should afford an efficacious remedy to

the petitioner to seek redress and, therefore, the writ

petition under Article 226 of the Constitution of India has

been held to be maintainable and can be entertained

without exhausting the alternative remedy. The Apex

Court in the Constitution Bench decision in the case of

A.V. Venkateswaran, Collector of Customs V.

Ramchand Sobhraj Wadhwani AIR 1961 SC 1506 as

referred in Whirlpool Corpn.(supra) has held that

application of the laid down principles depends upon each

particular case and variety of individual facts for the

proper exercise of the discretion of the Court and it would

not be possible and desirable as well to lay down

inflexible rules which should be applied with rigidity in a

given case.

17 . The precise question to be answered in these

two petitions is whether the disputed questions of facts

canvassed by the petitioners should be tried before the

writ Court or before the appropriate Forum as provided

under the said Statute of Delhi Land Reforms Act, 1954.

The ejectment orders against the petitioners have been

passed under Section 81 of the Delhi Land Reforms Act.

It is therefore, quite evident that the petitioners will have

to establish before the Court of Revenue Assistant that at

the relevant time there was no contravention on their

part to change the user of the land. Therefore, it is not a

mere question of service or non-service of the petitioners

in the said proceedings as in the event the petitioners

succeed in establishing the fact that they were not

properly served, then still they may be required to

contest the said proceedings either by leading evidence

or otherwise to prove that the land in question at the

relevant time was not a Gaon Sabha Land or the

petitioner never changed the agricultural use or to even

prove the fact that the proceedings against them were

without any jurisdiction. The Hon'ble Division Bench in

W.P. (C) No. 7641/2009 has clearly observed that the

question as to whether notice mentioned in the orders of

the Revenue Assistant was served or not cannot be

assailed in the writ proceedings and if the petitioners are

aggrieved from the ejectment orders passed by the

Revenue Assistant then they will have to take the

recourse to the remedy provided in the Act. It would be

appropriate to reproduce the observations of the Hon'ble

Division Bench in the said writ petition.

"29. It was also contended by the learned counsel for the petitioners that the respondents were required to tender 80% of estimated compensation to the petitioners before taking

possession of land in question, as required by Section 17(3A) of Land Acquisition Act. It would be appropriate at this stage to examine the order dated 29th May, 1981 passed by the revenue assistant u/s 81 of Delhi Land Reforms Act in case No.87/RA/80. A perusal of the order shows that a report was received by the Revenue Assistant from Halka Patwari regarding using of land in question for non-agricultural purposes. Thereupon notice was issued to the respondents to appear before the Revenue Assistant. Since they did not turn up despite service of notice, the matter was taken ex-parte against them. The Revenue Assistant held that the respondents had violated the provisions of Section 81 of Delhi Land Reforms Act and ordered their eviction from land in question. It was further directed that the decree shall not be executed if the respondents repair the damage within 3 months and that if they do not do so, land in question shall stand vested in the Gaon Sabha from after 3 months after the date of decree/order. It was contended by the learned counsel for the petitioner that the notice mentioned in the order of the Revenue Assistant was never served upon the petitioners as it was sent at the address of 7, Hanuman Road where none of them was residing and in fact only one of them was residing at 7, Humayun Road, New Delhi. It was also his contention that the land did not vest in Gaon Sabha as the petitioners were not ejected from the land in question despite order passed by the Revenue Assistant on 29th May, 1981. In our view, the question as to whether the notice mentioned in the order of the Revenue Assistant was served or not cannot be assailed in these proceedings. If the petitioners are aggrieved from the ejectment order passed by the Revenue Assistant u/s 81 of the Delhi Land Reforms Act, they have to take recourse to the remedy provided in the Act. In these proceedings, the petitioners cannot assail the order of the Revenue Assistant on the ground that the notice mentioned in the order of the Revenue Assistant was not actually served upon the petitioners. So long as the order passed by the Revenue Assistant on 29th May, 1981 stands, it remains binding on the petitioners. Though, there is no specific provision in Delhi Land Reforms Act to the effect that on passing of ejectment order u/s

81 of Delhi Land Reforms Act, the land, subject matter of the ejectment order would vest in Gaon Sabha, the scheme of the Act, in our view, indicates such an effect. It cannot be accepted that even after passing of ejectment order, the person against whom ejectment order is passed continues to enjoy the status of a Bhumidar or an Aasami, as the case may be. In fact the order of the Revenue Assistant, which has not been challenged so far in appropriate proceedings expressly directs that if the respondents do not repair the damage within 3 months from the date of order, the land shall stand vested in Gaon Sabha after 3 months from the date of the order. It is also not in dispute that pursuant to the order passed by the revenue assistant, land in question was entered in the name of Gaon Sabha, in the revenue records. The respondents have placed copies of Khatoni for the year 1988-89 which shows that the land comprised in Khasra No.97 of Village Tajpul stands mutated in the name of Gaon Sabha u/s 81 of Delhi Land Reforms Act. It cannot be said that even if the land in question vested in Gaon Sabha, Tajpul, in view of the order of the Revenue Assistant, the 80% of the estimated compensation envisaged in Section 3(A) of Land Acquisition Act was required to be tendered only to the petitioners, and not to Gaon Sabha".

18. Although the said observations were made by

the Hon'ble Division Bench concerning one of the khasra

numbers i.e. khasra No. 97 of Tajpul village of Mathura

Road, Delhi on which land the Delhi Police had proposed

to construct the police station, but so far provision of

Section 81 of the Delhi Land Reforms Act is concerned the

remedy of the petitioner to challenge the order of the

Revenue Assistant in relation to land in other khasra nos.

would also be the same as that of khasra No. 97 for which

the aforesaid observations have been made by the

Hon'ble Division Bench.

19 . The jurisdiction of the High Court under Art.

226 of the Constitution is couched in wide terms and the

exercise thereof is not subject to any restrictions except

the territorial restrictions which are expressly provided in

the Article. But the exercise of the jurisdiction is

discretionary; it is not exercised merely because it is

lawful to do so. The very amplitude of the jurisdiction

demands that it will ordinarily be exercised subject to

certain self-imposed limitations. Resort to that jurisdiction

is not intended as an alternative remedy for relief which

may be obtained in a suit or other mode prescribed by

statute. Ordinarily the Court will not entertain a petition

for a writ under Art. 226, where the petitioner has an

alterative remedy which, without being unduly onerous,

provides an equally efficacious remedy. Again, the High

Court does not generally enter upon to determine

disputed questions of facts which demand an elaborate

enquiry or examination through evidence in the exercise

of writ jurisdiction. The High Court does not therefore act

as a court of appeal against the decision of a court or

tribunal, to correct errors of fact, and does not by

assuming jurisdiction under Art. 226 trench upon an

alternative remedy provided by statute for obtaining

relief. Where it is open to the aggrieved petitioner to

move another tribunal or authority for obtaining redress

in the manner provided by a statute, the High Court

normally will not permit, by entertaining a petition under

Art. 226 of the Constitution by-passing the machinery

created under the statute.

20. It would be useful at this point to refer to the

observations of the Apex Court in the case of New Okhla

Industrial Development Authority vs. Kendriya

Karamchari Sahkari Grih Nirman Samiti (2006) 9

SCC 524 which are referred herein below:

"It is fairly well settled that disputed questions of fact should not be gone into by the High Court in writ proceedings.

12. A High Court is not deprived of its jurisdiction to entertain a petition merely because in considering petitioner's right to relief question of fact may fall to be determined as pointed out in Gunwant Kaur v. Municipal Committee :

AIR1970SC802 . In a petition under Article 226, the High Court has jurisdiction to try issues of law and fact. Where, however, the petition raises complex question of fact, the Court should not entertain the petition. In Mahanta Moti Das v. S.P. Sahid : AIR1959SC942 the High Court refused to go into the question as to whether Trusts were public or private trusts as the question had involved investigation of complicated facts and recording of evidence. The view was upheld. Thus, if there is a question on which there is a serious dispute which cannot be satisfactorily decided without taking evidence, it should not be decided in a writ proceeding (See Union of India v. T.R. Verma : (1958)IILLJ259SC ). If disputed questions of fact arise and the High Court is of the view that those may not be appropriately tried in a writ petition, the High Court has jurisdiction to refuse to try those questions and relegate the party to his normal remedy to obtain redress in a suit.

13. In a petition under Article 226, the High Court has jurisdiction to try issues both of fact and law. When the petition raises complex questions of fact which may, for their determination, require oral evidence to be taken and on that account the High Court is of the view that the disputed statement may not be appropriately tried in a writ petition,

the High Court should ordinarily decline to try the petition. Thus, a High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right, question of fact may fall to be determined. Ultimately, the question is one of discretion which is to be exercised in conformity with judicial principles."

Hence, in the background of the aforesaid facts, this

Court is not inclined to entertain the present writ petitions

as pure disputed questions of facts, be the same relates

to service of the petitioners or on merits to challenge the

proceedings under Section 81, can only be tried either

before the concerned Revenue Assistant or before the

Appellate Authority.

21. Hence, there is no merit in the present

petitions and the same are hereby dismissed.

KAILASH GAMBHIR, J JULY 20, 2010 Mg/rkr