Gujarat High Court
Madhuben Wd/O Vinodbhai Mehta vs Prabhatbhai Jivabhai Patel on 22 January, 2021
Bench: Ashutosh J. Shastri
C/SCA/8879/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8879 of 2020
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 8879 of 2020
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 2 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 8879 of 2020
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 3 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 8879 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
===========================================================
1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
================================================================
MADHUBEN WD/O VINODBHAI MEHTA
Versus
PRABHATBHAI JIVABHAI PATEL
================================================================
Appearance:
MR AMAR N BHATT(160) for the Petitioner(s) No. 1,2,3,4,5
GOVERNMENT PLEADER(1) for the Respondent(s) No. 28,29,30
MR NANDISH Y CHUDGAR(2011) for the Respondent(s) No. 19
MR. AUM M KOTWAL(7320) for the Respondent(s) No. 2
MS SHREE KOTWAL(11177) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No.
1,10,11,12,13,14,15,16,17,18,20,21,22,23,24,25,26,27,3,4,5,6,7,8,9
================================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : /01/2021
CAV JUDGMENT
Present petition under Articles 226 and 227 of the
Constitution of India is filed for the purpose of seeking following
reliefs :
"(A) Issue a writ of certiorari or any other appropriate
writ, order or direction calling for the record and proceedings of
the RTS Revision No. 148 of 2019 and be further pleased to
quash and set aside the order dated 03/07/2020 passed by the
Collector at Annexure - A hereto in the said Revision.
(B) During the pendency and final disposal of this
petition,
(i) stay the operation,
implementation and execution of the order dated
03/07/2020 passed by the Collector at Annexure
A hereto.
(ii) restrain the Respondent
Authorities from effecting any changes in the
revenue records pertaining to the land bearing
Block No.397 in Village Kudasan, District
Gandhinagar on the basis of the Order dated
03/07/2020 at AnnexureA hereto.
(C) Award cost of this Petition.
(D) Grant such other and further reliefs as may be
deemed just and expedient."
2. The premise, on which the present petition is brought
before the Court, is that the land bearing Block Nos. 395 and 397 of
Village Kudasan was purchased by Jituji Vajesang Solanki from the
original owner Punjabhai Girdharbhai Suthar. On 06.06.1957, Jituji died
leaving behind the widow and three daughters viz. Shantaba, Sarbaben
and Hejaba as classone heirs. On 30.06.1957, Entry No. 762 came to be
mutated only in favour of one daughter of the deceased Jituji and as
such, it was recorded that a new entry be made to enter the names of
the widow as well as left daughters of the deceased Jituji. On
28.02.1967, though the names of three daughters and the widow should
have been recorded in the revenue record, one Entry No. 1045 was
mutated in the names of Hameersinh Jaisinh and Nathusinh Jaysinh as
sons of brother of Jituji. On 25.03.1989, after the death of said
Hameersinh, the names of his heirs were entered in the revenue record
vide Entry No. 1963. Against the said names viz. Hitendrasinh
Hamirsinh, Yashwantsinh Hamirsinh, Chandravijaysinh Hamirsinh and
Manharba - widow of Hamirsinh, legal heirs of deceased Hamirsinh, one
of the daughters of Jituji filed RTS Proceedings No. 16 of 1989 for
setting aside the Entry No. 1045 which was dismissed on account of non
joinder of necessary party and then on 16.08.1991, the heirs of the
deceased Hamirsinh executed a sale deed for both the lands in favour of
Vadibhai Bababhai Patel, Ishwarbhai Ambalal Patel and Tribhuvan
Ambalal Patel for which Entry No. 2175 was made in the revenue
record. On 14.09.1993, said Vadibhai and others have further executed a
sale of both the lands in favour of one Pradip Rasesh Patel and then, the
entry was mutated for that transaction being Entry No.2318 in the
revenue record. On 26.05.1995 again, RTS Appeal SR No.35 of 1996
was filed by one legal heir of the deceased Jituji for cancellation of
original entry No.1045 and the order cancelling it was passed by the
Prant Officer and the direction was given to verify the names of legal
heirs of Jituji. On 03.06.1997, one another entry was made being Entry
No. 2680 recording the above order dated 26.05.1997 and then, on
03.06.1997 again, an entry was effected being Entry No. 2681 recording
the names of following persons qua the land in question :
1. The heirs of Shantaba
a. Hiraben Lalji Dabhi
b. Bhikhaji Lalji Dabhi
c. Kesarba Lalji Dabhi
2. The heirs of Sardaben
a. Sendhaji Jivanji Gohil
b. Mafaaji Jivanji Gohil
c. Parthiji Jivanji Gohil
d. Jivuba Jivanji Gohil
3. The heirs of Hejaba
a. Jashuba Varvaji Gohil
b. Pethuji Varvaji Gohil
c. Ramba Varvaji Gohil
d. Bhikhaji Varvaji Gohil
e. Antarba Varvaji Gohil
f. Vikramji Varvaji Gohil
2.1 Thereafter on 07.06.1997, according to the petitioners, the
predecessors of them i. e. petitioners Nos.1 to 4 Shri Vinodbhai Mehta
purchased the land in question with petitioner No.5 and one Bababhai
Keshavlal Patel from the above persons vide registered sale deed for
which Entry No. 2683 was made. Around the same time, Block No. 395
was sold by them to respondent No.1 (Bhikhabhai and two others).
2.2 It is the further case of the petitioners that in 1997,
Bhikhabhai and others filed Civil Suit No. 147 of 1997 for cancellation of
sale deeds dated 16.08.1991 and 14.09.1993 against Vadibhai and
others and Pradip Rasesh Patel. Simultaneously, Pradip Patel also filed
Regular Civil Suit No. 289 of 1997 for seeking injunction against one
Ishwarbhai Patel and others. Thereafter, on 23.09.1997, the said Pradip
Patel filed Revision Application being RJ SSR No. 24 of 1997 against the
order dated 26.05.1997 which came to be dismissed and Entry No.2720
was made recording the said dismissal. Then in 1998, Special Civil Suit
Nos. 40 and 41 of 1998 came to be filed by Pradip Patel for seeking
declaration and injunction in the court of 5th Senior Civil Judge,
Gandhinagar with a prayer for cancellation of sale deed in favour of
petitioner Nos. 1 to 4's predecessor and petitioner No.5 for land bearing
Block No. 397 was made in Special Civil Suit No. 40 of 1998, whereas
Special Civil Suit No. 41 of 1998 was with respect to the land in question
which was Block No. 395. On 13.11.1998, the Special Secretary,
Revenue Department, SSRD allowed the revision application of Pradip
Patel and set aside the orders dated 26.05.1997 and 23.09.1997 and
restored the original Entry No. 1045 and to that effect, Entry No. 2788
was recorded.
2.3 Further, it has been averred by the petitioners that on
29.12.1998, the heirs of Jitusinh challenged the order of SSRD in the
Gujarat High Court by preferring Special Civil Application No. 10167 of
1998 in which it was held that the entries made by the revenue
authorities will not be binding to the Civil Court and a direction was
given to the revenue authorities not to make any changes and it was
inter alia held that:
"The decision of the Civil Court is to be given effect to by the
Revenue Authority and if necessary, the entry made by the
Revenue Authority may have to be cancelled or modified in
accordance with the decision of the Civil Court. In view of this
legal position, the impugned order of the Revenue Authority will
not have binding effect on the rights of the parties, which are
pending adjudication in the Civil Court. To reiterate the final
decision in the civil proceedings which is pending between the
parties will really determine the legal rights between the parties.
The rights of the parties in the pending civil proceedings will
obviously not be adversely affected by the impugned decision or
the resultant entry."
2.4 It is the further case of the petitioners that on 02.01.1999,
one another entry was recorded being Entry No. 2792. A reference was
made to the High Court's order and on 02.01.2018, both the Civil Suit
Nos. 40 and 41 of 1998 came to be dismissed by common judgment and
order and it was held that Hamirsinh and his legal heirs have no title to
the land in question and according to the petitioners, no appeal was
filed. On 19.02.2000, two sale deeds came to be executed by said Pradip
Patel in favour of respondent No.2 viz. Shashin Vishnubhai Patel qua the
land being Block Nos. 395 and 397 respectively. However, on
07.02.2018, a common Entry No. 10478 is made recording the common
judgment of the Civil Court instead of making separate entries as per the
case of the petitioners. On 15.07.2019, RTS Appeal No. 148 of 2018 was
filed by respondent No.2 viz. Shashin Vishnubhai Patel challenging Entry
No. 10478 which appeal was dismissed and in September 2019,
according to the petitioners, RTS Revision Application No. 148 of 2019
came to be filed by respondent No.1 viz. Prabhatbhai Jivabhai Desai
challenging order dated 15.07.2019 wherein adinterim relief was
granted of maintaining status quo. It is further the case of the petitioners
that on 03.07.2020, an order came to be passed in RTS Revision
Application No. 148 of 2019 allowing RTS Revision Application on the
ground that the sale deeds made by heirs of Hamirsinh and others and
subsequent sale deeds are not set aside and the said order came to be
passed, according to the petitioners, without appreciating the common
judgment of the Civil Court in which it was held that the heirs of
Hamirsinh had no power to execute the sale deeds. It was also asserted
by the petitioners that in the revision filed by respondent No.1, no order
could have been passed qua the land of the petitioners being Block No.
397 since respondent No.1 Prabhatbhai has no concern with the said
land. The order dated 15.07.2019 is not challenged by respondent No.2
viz. Shashin Vishnubhai Patel, but caveat application was filed by him in
SSRD in respect of order dated 03.07.2020. According to the petitioners,
in the said application, the Collector had no jurisdiction to pass the order
affecting the land of the petitioners i. e. Block No. 397. Merely because a
common entry was made for two lands based upon a common judgment
does not mean according to the petitioners that in revision filed by the
owners of one land i. e. Block No. 395, the entry as a whole can be
ordered to be modified in such a way that the said portion of the land of
the petitioners be affected and as such by raising a grievance
substantially on that count, the present petitioners have approached
before this Court invoking extraordinary jurisdiction of this Court. So in
substance in the background of aforesaid facts and circumstances, the
order passed by respondent No.3 who is a Collector, Gandhinagar is
made the subject matter of present petition under Articles 226 and 227
of the Constitution of India by raising multiple contentions.
2.5 This petition when originally was placed before the Court
on 04.08.2020, after hearing the petitioners, the Court was pleased to
admit the petition exparte by making rule returnable on 24.08.2020
and granted interim relief in terms of paragraph 7(B)(ii) qua Block No.
397 till final disposal of this petition and the said detailed order is
passed on 04.08.2020. It appears from the record that upon receipt of
writ of this Court, the original respondent No.2 appears to have filed
Civil Application No. 1 of 2020 for vacating exparte interim relief by
raising a grievance that though respondent No.2 filed a caveat
application before the authority before whom substantive revision
application came to be filed by an alternative efficacious remedy, still
straightway, an admission was sought of the petition and an exparte
interim relief was granted and by further raising multiple circumstances
projected in the civil application, an application came to be filed for
vacating the said exparte order by preferring an application under
Article 226(3) of the Constitution of India. It further appears from the
record that one another application being Civil Application No. 2 of
2020 came to be filed by the original petitioners for seeking amendment
in the causetitle in the name of respondent No.1. In view of aforesaid
factual detail, the civil application for vacating the stay was filed under
Article 226(3) of the Constitution of India. In view of the said provisions,
learned advocates appearing on behalf of both the sides have requested
the Court to hear and dispose of main petition on a particular date and
since it was clearly understood between the learned advocates, an order
to that effect was passed by this Court on 31.08.2020. Thereafter, the
matter came up for consideration and learned advocates of both the
sides have been heard at length and the matter is reserved for judgment
vide order dated 08.09.2020.
3. With the aforesaid background of facts, the Court has
considered the rival submissions in the present proceedings.
4. Learned senior advocate Mr. Mihir Joshi appearing with
learned advocate Mr. Amar Bhatt for the petitioners has raised multiple
contentions. To substantiate his submissions, several decisions, large in
numbers are brought before the Court and has requested to grant the
relief as prayed for in the petition. In addition to this, written brief
points have been placed on record by supplying a copy to the other side.
Since the said contentions have been adduced in writing, the Court
would like to reproduce the same hereunder :
"Points:
The Respondent No.1 had no locus standi to file the Revision :
The Revision was filed by Respondent No.1, a successful
defendant in the common judgment dated 02/01/2018 and a
successful Respondent in RTS Appeal NO. 148 of 2018. The
Respondent No. 1 is NOT a "person aggrieved".
Kindly see the following judgments (List 1) on the issue of
"person aggrieved"
(i) (2013) 4 SCC 465 (paras 10 to 13 and 17),
(ii) (1970) 2 SCC 484 (Paras 6 to 11)
(iii) (1976) 1 SCC 671 (paras 40 to 43). The proposition is
that to raise the grievance a person must show how he suffered
legal injury.
Revision by Respondent No.1 and Appeal by Respondent No.2 are
abuse of process of law:
Entry No. 10478 was challenged by the Respondent No.2
in the RTS Appeal. The Respondent No.1 did not challenge the
said entry by filing such RTS Appeal. However, Revision is filed by
the Respondent No.1. No Revision is filed by the Respondent No.2.
In substance Respondent No.1 files Revision without filing Appeal.
The Respondent No.2 filed Appeal but did not file Revision
challenging the Order of RTS Appeal. This is a classic case of
Abuse.
Revision is by Respondent No.1 - not a "persons
aggrieved"
The Respondent No.2 filed RTS Appeal on the basis of Entry
Nos.1045, 1963, 2175, 2318 and 3144.. Entry No. 1045 is the
fountain head of all subsequent entries. Entry No. 1045 is in the
name of Hamirsinh Jaysinh (NOT a ClassI heir of original owner
Jituji. Entry No. 1045 was the subject matter of SCA 10167 of
1998 in which order dated 29/12/1998 is passed at pages 101
102. In the said order, it is inter alia held as under :
The decision of the Civil Court is to be given effect to by the
Revenue Authority and if necessary, the entry made by the
Revenue Authority may have to be cancelled or modified in
accordance with the decision of the Civil Court. In view of this
legal position, the impugned order of the Revenue Authority will
not have binding effect on the rights of the parties, which are
pending adjudication in the Civil Court. To reiterate the final
decision in the civil proceedings which is pending between the
parties will really determine the legal rights between the parties.
The rights of the parties in the pending civil proceedings will
obviously not be adversely affected by the impugned decision or
the resultant entry.
Special Civil Suit No.40 of 1998 and 41 of 1998 were
filed by Pradip Patel. He was the purchaser of both the lands
bearing Block Nos. 397 and 395 from one Vadibhai Patel and
others. Vadibhai Patel and others purchased the said land from
the heirs of Hamirsinh. Hamirsinh was the son of the brother of
Jituji and therefore NOT a ClassI heir. ClassI heirs of Jituji are
Respondent Nos. 3 to 18 herein in this petition. Thereafter on
02/01/2018, by the said common judgment, the Suits of Pradip
Patel were dismissed inter alia holding that Pradip Patel
purchased the lands from the persons having no title. Kindly see
the finding of the Civil Court - Page 74 (para 1), Page 95 (page
1), page 97 (last para) and Page 99 (para 1). The sale deeds of
the petitioners and in favour of the Respondent No.1 herein are
held to be legal. The Respondent No.2Shashin Patel claims to be
the purchaser from Pradip Patel. However, if Pradip Patel is held
to be not having any title, the Respondent No.2 cannot also get
any title. In light of the Civil Court Judgment, Entry 1045 and
resultantly all subsequent entries based thereon will have to be
cancelled.
Based on the Civil Court's judgment, Entry No. 10478 is
made in compliance of the order of this Hon'ble Court at pages
101102.
RTS Appeal by Respondent No.2 challenging the Entry
10478 made on the basis of the Civil Court judgment and to give
effect to this Hon'ble Court's order is thus an attempt to make
petitioners chase him in the litigation. (Interestingly though the
Revision was filed by the Respondent No.1Prabhatbhai, the
caveat is filed in SSRD by Respondent No.2Shashin Patel) which
also speaks volumes about their abuse of process.
The Petitioners who are successful defendants in the Civil
Suit Nos.40 of 1998 are thus asked to chase the successful
Respondent No.2 at his desire and whims. The Respondent No.2
has no substantial right and therefore, the Petitioners cannot be
asked to keep on chasing the Respondent No.2. An Appeal by the
Respondent No.2 and the Revision by the Respondent No.1 are
thus nothing but an abuse of process of law. (Kindly see oral
order dated 30/07/2020 in SCA 8752 of 2020 (pages 6 to 9) of
the first compilation of judgments given by the Petitioner. (2005)
6 SCC 499 (paras 22, 23) holding that when there is abuse of
process, the High Court can entertain Petition in spite of
alternative remedy.
The Collector had no jurisdiction to pass any order in respect of
Petitioners' land being Block No.397:
Original RTS Appeal 148 of 2018 before the Prant Officer
was filed by the Respondent No.2.
Against the dismissal of the RTS Appeal, the Revision
before the Collector was filed by the Respondent No.1 even
through he is not a "person aggrieved". The Respondent No.1 is
concerned only with the land being Block No.395. Admittedly, he
is not concerned with the land being Block No. 395. Therefore in
the Revision of the Respondent No.1 at the most the Collector
would have no jurisdiction to decide about the Entry No.10478
qua the petitioners' land being Block No.397.
The Collector had no jurisdiction to pass any order with
respect to Entry No.10478 qua the land of the Petitioners being
Block No.397.
The Respondent No.2 having not challenged the decision
of the Prant Officer, the same became final qua him. Kindly see
paras 18 and 19 of 1985 (1) GLR 139. The Respondent No.2 has
not challenged the order of the Prant Officer by filing substantive
petition......."
5. As against this, contesting respondent No.2 has vehemently
contended in substance that there is a specific alternative efficacious
remedy available by way of preferring substantive revision application
before the revenue authority and in view of this complex issues on facts,
no extraordinary jurisdiction could have been invoked by the petitioners.
In addition thereto, he has submitted that revenue entries are not
deciding the title and therefore, in view of settled position of law, a writ
jurisdiction may not be invoked for the said purpose and in any case,
what is under challenge is the order of the Collector and as such,
extraordinary jurisdiction may not be utilized by the petitioners to
bypass a remedy provided under the Statute. Hence, a request is made to
dismiss the petition. In addition thereto, it has been vehemently
contended that a caveat application was filed before the alternative
remedy forum and to bypass and avoid some conflicts, straightway, ex
parte admission and interim relief is sought in the present petition and
as such, blanket rule that once petition is admitted, no alternative
remedy issue may be dealt with, is not available to the petitioners since
practically it is an exparte admission and grant of interim relief.
6. Learned senior advocate Mr. Mehul Shah appearing with
learned advocate Mr. Aum Kotwal on behalf of contesting respondent
No.2 has also tendered written brief points in detail and contended that
no petition be entertained at the instance of the petitioners. Since there
is a stiff contest of both the sides over the decision of the Collector, the
Court would like to incorporate written brief points submitted to the
Court as under :
"1. That the present case at hand is in relation to "Entry
proceedings" and the mutation that lead to the culmination of
these proceedings in mutation Entry No. 10478. The said
mutation entry is a common mutation entry with regards to two
parcel of lands being Block No. 395 and Block No. 397 resulting
from common judgment passed in Special Civil Suit No. 40 & 41
of 1998 and hence separate effects cannot be given. Further, the
said common mutation entry was before the District Collector,
Gandhinagar for adjudication and the District Collector,
Gandhinagar could not have passed different orders with regards
to a common mutation entry for two parcels of lands. The District
Collector, Gandhinagar rightly passed a common order because
of the common order of the Prant Officer and the common
mutation entry with regards to two parcel of lands. The District
Collector, Gandhinagar has just dealt with the "Effect" of the
mutation entry and has merely modified the entry giving effect to
the civil courts order by ordering the same to be recorded under
the column of "other rights".
2. That the present respondent No.2 has been in possession
for about 20 years now and is the third consecutive purchaser viz
sale deed and hence, the same cannot be cancelled automatically.
As per the settled position of law revenue entries are to be made
on bases of registered sale deeds.
3. That neither the mutation entries nor the sale deeds of the
predecessors or the present petitioner are challenged and cancelled
till date by the petitioners. However, by the impugned effect of the
entry the revenue authorities have themselves cancelled the sale
deeds which is not permissible.
4. That mutation Entry No. 1045 has been conformed up to
this Hon'ble Court. This Hon'ble Court by order dated 29.12.1998
(pg.101) made the said mutation entry subject to civil suit. Till
date no civil suit is preferred challenging the succession recorded
with regards to mutation Entry No. 1045 by the petitioners.
5. That Special Civil Suit No. 40 & 41 of 1998 were
preferred by the predecessor of the present respondent No.2 for
declaration and for challenging the sale deeds of the petitioners.
However, dismissal of the said suits has the only effect as if no
such suit was filed it neither creates or extinguishes any right or
title. Both the suits are not related to Entry No. 1045 which is
upheld up to this Hon'ble Court. Hence, the order of the District
Collector, Gandhinagar modifying the order of the Prant Officer,
Gandhinagar with regards to the effect of common mutation
arising from the common judgment in Special Civil Suit No. 40 &
41 of 1998 with was in relation to Block No. 395 and 397 is true,
correct and stands the test of law.
6. That the present respondent no.2 was not even a party to
the Special Civil Suit No. 40 & 41 of 1998 and hence, the said
judgment cannot automatically cancel the rights and the title of
the present respondent no.2 who has been in possession of the
said property for about 20 years. Especially, when the rights of
predecessor present petitioner are not established and the sale
deed in favor of the present respondent no.2 and his predecessor
are not cancelled.
7. That the District Collector, Gandhinagar exercised his
power of revision under Rule 108(6) and these powers are wide in
nature and the District Collector, Gandhinagar has thus, rightly
"modified" the order of the Prant Officer, Gandhinagar which was
in regards of a common mutation entry with reference to both the
parcels of land. Thus, the question with regards to "affected
party" is to be ruled out. The power under Rule 108(6) is
wholesome jurisdiction and even applying the strict principles of
CPC, under Order 41 Rule 4 and 33, it is always permissible for
one respondent to claim relief against another respondent even
without filing appeal.
8. That the alternative remedy is very much available to the
petitioner and the petitioner has no ground to come before this
Hon'ble Court directly. The present is not at all a case of want of
jurisdiction and at the best (without admitting) it may be alleged
of irregular excise of jurisdiction."
7. Simultaneously, the respondent State has also chosen to
tender the brief points to assist the Court and has pointed out several
decisions of the Court and much emphasize has been placed by both the
learned advocates appearing for the contesting respondent and in view
of this complex factual details, let a statutory authority be allowed to
adjudicate and examine these highly disputed questions of fact and since
the statute has provided a specific machinery to ventilate the grievance,
the petitioners may be relegated to an alternative remedy which is
undisputably available where all the points much less point of even want
of authority can also be examined by such forum. The written brief
points of the State are also reproduced hereunder :
"2. Availability of alternative remedy.
2.1 The order impugned has been passed by the Collector
under Rule 108(6) of the Gujarat Land Revenue Rules, 1972. It is
most humbly submitted that the impugned order dated
03.07.2020 can be challenged before the Special Secretary,
Revenue Department (Appeals). The contention of the petitioner
that the order of the Collector is beyond jurisdiction and without
any authority of law as the Collector has disturbed the entry in
the revenue records, qua both the parcels of land, at the instance
of a person having interest in only one of the lands in question is
misplaced inasmuch as, the Collector has directed that the correct
effect of common judgment dated 02.01.2018 passed in Special
Civil Suit Nos. 40 & 41 of 1998 by the 5th Additional Senior Civil
Judge, Gandhinagar be given in the revenue records. Even as
order, allegedly erroneous need must be challenged before to
competent authority prescribed in the hierarchy of appeal and
revision statutorily, prescribed.
2.2 Following judgments are relied upon for the present
argument:
a) Nivedita Sharma v. Cellular Operators Association of
India [201(14) SCC 337] it is settled law that when a statutory
forum is created by law for redressal of grievance, a writ petition
should not be entertained ignoring the statutory dispensation.
[Relevant paras 12 to 17]
b) General Manager, Sri Siddeshwara Cooperative Bank
Limited and anr. v. Ikbal and ors. [2013 (10 SCC 83)]: no
doubt an alternative remedy is not an absolute bar to the exercise
of extraordinary jurisdiction under Article 226 but by now it is
well settled that where a statute provides efficacious and adequate
remedy, the High Court will do well in not entertaining a petition
under Article 226. On misplaced considerations, statutory
procedures cannot be allowed to be circumvented. [Relevant paras
: 30 & 31].
3. Mutation of entries in the "Other Rights" Column
3.1 It is most humbly submitted that the mutation of names
in the first column of rights, is effected for such persons who have
absolute rights over a particular land or property and there exists
no other claims over the said property. Whereas the mutation of
names in the "Other Rights" or "BijaHakk" Column is effect for
those having a claim or lien over a particular land or property
and where there are other entires recording rights based on
registered documents which have not been disturbed by any decree
or order of any court. Such entries would be entered in the "Other
Rights" or "BijaHakk" Column.
3.2 The entire controversy before the Hon'ble Court has a
chequered history and various registered sale deeds have been
executed by the Class I and Class II heirs of the original owner,
Jituji Vajesang. It is mot pertinent to note that a categorical
observation has been made by the Collector (page no. 27 of the
petition) that no sale deed affected by a registered sale deed by
the Class II heirs, has been set aside by the Civil Court of
competent jurisdiction. It is therefore submitted that the Collector
has rightly passed the impugned order, in light of the various
subsisting and parallel rights of the various parties to the present
dispute.
3.3 Another important aspect that may be considered by the
Hon'ble Court and that has also been taken care of, by the
Collector in the impugned order, is that the mutation entries in
favor of the petitioners would not confer any right of title over the
land in question. It is submitted that merely because the
petitioners were successful defendants in Special Civil Suit No. 40
& 41 of 1998 would not confer a clear and absolute title to them
in respect of the property in question, inasmuch as, the registered
sale deeds executed in favor of the Respondents still continue to
exist. In other words, rejection of a suit for declaration for
cancellation of a registered sale deed would not lead to
cancellation of another registered sale deed executed in favor of
the plaintiff.
3.4 Following judgments are relied upon for the present
argument:
a) Evergreen Apartment Co. Operative Housing Society
Limited Versus Special Secretary (Appeals), Revenue Department
[1990(0) AIJEL HC 203330]. It is well settled that the entries
made in the revenue records have primarily a fiscal value and
they do not create any title. Such mutations have to follow either
the documents of title or the orders passed by competent
authorities under special enactments. [Relevant para 12].
b) Jayantilal Jethalal Soni versus State of Gujarat [2004 (0)
AIJEL - HC 205533].:
Revenue entries are having value only for fiscal purpose and more
particularly for the purpose of recovery of revenue and it neither
confers any right or title over the property, nor does it take away
the right of title in the property which otherwise cannot be
available under the law. [Relevant para 7]."
8. In rejoinder to this, with a view to brush aside the objection
raised by the petitioners, an attempt is made to canvass submissions in
rejoinder and an attempt is made to see that the admission order was
passed after hearing the learned Assistant Government Pleader. In view
of settled position of law, the issue of alternative remedy may not be
available to the respondents. To point out this, few decisions have also
been brought to the notice of this Court. Since both the sides have thrust
upon large number of decisions as if this Court is to adjudicate the
grievance of the petitioners in place of statutory forum, following are the
decisions tendered by the petitioners and placed on record. The citations
of such are reproduced hereunder :
Sr. Citations
No.
1 Order dated 30/7/2020
in SCA 8752 of 2020
2 (2019) 6 SCC 82
(2016) 12 SCC 235
3 (1970) 2 SCC 484
(1976)1 SCC 671
4 (2011) 5 SCC 697
(1998) 8 SCC 1
5 (2013) 4 SCC 465
(2017) 5 SCC 496
6 (2012) 5 SCC 370
7 2006 SCC Online Del 36
8 (2005) 6 SCC 499
9 1999 SCC Online Guj 307
9. With the aforesaid background of submissions of both the
sides, the Court is confronted with a situation as to whether in such a
factual matrix of this nature to exercise extraordinary jurisdiction or not
or to relegate the petitioners to an alternative forum which is created by
the statute where even the points of jurisdiction also can be agitated and
examined as to whether the Collector while passing the impugned order,
has got authority or not. So first of all, the prominent issue which has
been projected about alternative efficacious remedy, the Court would
like to deal with the same first and if that be so, then examination and
adjudication of the facts and the contentions related to it would arise if
the Court is relegating the petitioners to the alternative remedy, then
merit is not examined or opined so as to avoid a situation where the
authority which is to adjudicate will not be influenced by any of the
observations, or conclusion even prima facie in nature.
10. So in this context, first all of, what has been challenged
before the Court is an order passed by respondent No.30 i. e. Collector,
Gandhingar who passed an order in exercise of jurisdiction under Rule
108(6) of the Rules and it is this order which can be a subject matter of
revision petition before the higher revisional authority i. e. the Special
Secretary, Revenue Department (Appeals) or the State Government as
such and prima facie, it appears that there is a specific alternative
efficacious remedy available to the present petitioners to assail the order
impugned in this petition i. e. order dated 03.07.2020 and hence, the
Court is prima facie satisfied that the petitioners are not remedyless and
are amenable to alternative remedy created by the statute and as such,
once the petitioners are having an alternative remedy, the factual details
and the controversy which have been projected before the Court can be
adjudicated before the said forum which is empowered with
adjudicating power and to examine this highly disputed questions of
fact. Since the facts are interwoven to several litigants, the Court is of
the considered opinion that it is desirable for the alternative forum to
undertake such exercise and adjudicate. So looking to the peripheral
jurisdiction of this Court propounded by series of decisions, this Court is
of the considered opinion that the petitioners are amenable to
alternative remedy created by the statute. The Court is also of the
opinion that there is no blanket proposition that the High Court cannot
examine the grievance of the petitioners, but this Court is of the opinion
that when the case is of such factual matrix, it would be better for the
alternative forum created by the statute to undertake such exercise
rather than a constitutional court to usurp the jurisdiction of such
authority.
10.1 Further that the disputed questions of fact are not to be
dealt with by the writ court and this law has been consistently observed
right from 2005 onwards. Following are the decisions taken into
consideration while substantiating this proposition :
(I) (2005) 12 SCC 725
(II) 2016 SCC 296
10.2 Yet another proposition which cannot be given a gobye or
unnoticed by the Court is that in the entry dispute, no writ proceedings
normally be entertained precisely for the reason that the entries are not
conferring or deciding any right, title or interest of the property. This
proposition is well defined by series of decisions. Following are the
decisions which have been given a clear indication in that respect :
(I) AIR 2014 SC 2669 (para 30)
"30. In either of the cases, the grantee cannot stay in
possession for more than 60 years. The argument that an
old grantee can stay in possession in perpetuity so long as
there is no violation of Regulation 151, therefore, needs to
be noticed only to be rejected. The appellants, in the present
case, no doubt may have protection under the 1966
Regulations because the grant in their favour was deemed to
have been renewed up to 1994 was in existence in 1966 but
such protection would cease with the expiry of the 60 years
period in 1994."
.
(II) (2019) 3 SCC 191 (para 6 & 7)
"6. This Court has consistently held that mutation of a
land in the revenue records does not create or extinguish the
title over such land and nor has it any presumptive value on
the title. It only enables the person in whose favour
mutation is ordered to pay the land revenue in question.
7. The High Court while dismissing the writ petition
placed reliance on the aforementioned law laid down by this
Court and we find no good ground to differ with the
reasoning and the conclusion arrived at by the the High
Court. It is just and proper calling for no interference."
10.3 Yet another decision in which paragraph 24 has also down
the settled proposition which decision is reported in (2019) 3 SCC 530.
10.4 So from the aforesaid circumstance, these are self imposed
limitations which has prevented the Court from exercising the writ
jurisdiction, more particularly when the issue of alternative remedy has
remained undisputed in the present proceedings.
10.5 The issue of availing alternative remedy is amply cleared by
series of decisions delivered by the Apex Court as well as this Court. In
recent past, this Court was also confronted with such an issue in which
after analyzing other decisions of the Apex Court, a view is taken that
when the alternative forum is available, normally, the same may be
respected to by the litigant and the High Court cannot usurp the
jurisdiction of that authority which is created by the statute. Such
analysis is made by this Court vide judgment dated 17.12.2020 delivered
in Special Civil Application No. 15021 of 2020 and connected matter.
Relevant observations contained in the said decision are reproduced
hereunder :
"most relevant decision reported in (2015) (6) SCC 773 in case of
Union of India and ors. vs. Major General Shri Kant Sharma
and anr. few paragraphs, this court would like to reproduce
hereunder:
"Basic principle for exercising power under Article 226 of the Constitution:
27. "In Babubhai Muljibhai Patel vs. Nandlal Khodidas Barot and others,
this Court held as follows:
"10.....Exercise of the jurisdiction is no doubt discretionary, but the
discretion must be exercised on sound judicial principles. 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 dispute should not appropriately be tried in a writ petition, the
High Court may decline to try a petition (See Gunwant Kaur v.Bhatinda
Municipality, AIR 1970 SC 802). If, however,on consideration of the nature
of the controversy, the High Court decides, as in the present case, that it
should go into a disputed question of fact and the discretion exercised by the
High Court appears to be sound and in conformity with judicial principles,
this Court would not interfere in appeal with the order made by the High
Court in this respect."
28. In Mafatlal Industries Ltd. and others vs.Union of India and others,
(1997) 5 SCC 536, a nineJudge Bench of this Court while considering the
Excise Act and Customs Act held that the jurisdiction of the High Court
under Article 226 and this Court under Article 32 though cannot be
circumscribed by the provisions of the said enactments, they will certainly
have due regard to the legislative intent evidenced by the provisions of the
said Acts and would exercise their jurisdiction consistent with the provisions
of the Act. This Court held:
"108. The discussion in the judgment yields the following
propositions. We may forewarn that these propositions are set out
merely for the sake of convenient reference and are not supposed to
be exhaustive. In case of any doubt or ambiguity in these
propositions, reference must be had to the discussion and
propositions in the body of the judgment.
(i)...........While the jurisdiction of the High Courts under Article 226
and of this Court under Article 32 cannot be circumscribed by the
provisions of the said enactments, they will certainly have due regard
to the legislative intent evidenced by the [pic]provisions of the said
Acts and would exercise their jurisdiction consistent with the
provisions of the Act. The writ petition will be considered and
disposed of in the light of and in accordance with the provisions of
Section 11B. This is for the reason that the power under Article 226
has to be exercised to effectuate the rule of law and not for
abrogating it.
Xxx xxx xxx xxx
29. In Kanaiyalal Lalchand and Sachdev and others vs. State of
Maharasthra and others, (2011) 2 SCC 782, this Court considered the
question of maintainability of the writ petition while an alternative remedy
is available. This Court upheld the decision of the Bombay High Court
dismissing the writ petition filed by the appellants therein on the ground of
existence of an efficacious alternative remedy under Section 17 of SARFASI
Act and held:
"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., Surya Dev Rai v. Ram Chander Rai and SBI v. Allied Chemical
Laboratories7.)
24. In City and Industrial Development Corpn. v. Dosu Aardeshir
Bhiwandiwala this Court had observed that: (SCC p. 175, para 30)
"30. The Court while exercising its jurisdiction under Article 226 is
duty bound to consider whether:
(a) adjudication of the 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) the 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."
30. In Nivedita Sharma vs. Cellular Operators Association of India and
others, (2011)14 SCC 337, this Court noticed that when a statutory forum
is created by law for redressal of grievances, a writ petition should not be
entertained ignoring the statutory dispensation. The Court further noticed
the previous decisions of this Court wherein the Court adverted to the rule of
selfrestraint that writ petition will not be entertained if an effective remedy
is available to the aggrieved person as follows:
13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa this Court
observed: (SCC pp. 44041, para 11) "11. ... It is now well
recognised that where a right or liability is created by a statute
which gives a special remedy for enforcing it, the remedy provided by
that statute only must be availed of. This rule was stated with great
clarity by Willes, J. in Wolverhampton New Waterworks Co. v.
Hawkesford in the following passage: (ER p. 495) '... There are three
classes of cases in which a liability may be established founded upon
a statute. ... But there is a third class viz. where a liability not
existing at common law is created by a statute which at the same
time gives a special and particular remedy for enforcing it. ... The
remedy provided by the statute must be followed, and it is not
competent to the party to pursue the course applicable to cases of the
second class. The form given by the statute must be adopted and
adhered to.' The rule laid down in this passage was approved by the
House of Lords in Neville v. London Express Newspapers Ltd. and has
been reaffirmed by the Privy Council in Attorney General of Trinidad
and Tobago v. Gordon Grant and Co. Ltd. and Secy. of State v. Mask
and Co. It has also been held to be equally applicable to enforcement
of rights, and has been followed by this Court throughout. The High
Court was therefore justified in dismissing the writ petitions in
limine."
14. In Mafatlal Industries Ltd. v. Union of India B.P. Jeevan Reddy,
J. (speaking for the majority of the larger Bench) observed: (SCC p.
607, para
77) "77. ... So far as the jurisdiction of the High Court under Article
226or for that matter, the jurisdiction of this Court under Article
32is concerned, it is obvious that the provisions of the Act cannot
bar and curtail these remedies. It is, however, equally obvious that
while [pic]exercising the power under Article 226/Article 32, the
Court would certainly take note of the legislative intent manifested in
the provisions of the Act and would exercise their jurisdiction
consistent with the provisions of the enactment."
15. In the judgments relied upon by Shri Vaidyanathan, which,
by and large, reiterate the proposition laid down in Baburam
Prakash Chandra Maheshwari v. Antarim Zila Parishad, it has been
held that an alternative remedy is not a bar to the entertaining of
writ petition filed for the enforcement of any of the fundamental
rights or where there has been a violation of the principles of natural
justice or where the order under challenge is wholly without
jurisdiction or the vires of the statute is under challenge.
16. It can, thus, be said that this Court has recognised some
exceptions to the rule of alternative remedy. However, the
proposition laid down in Thansingh Nathmal v. Supt. of Taxes8 and
other similar judgments that the High Court will not entertain a
petition under Article 226 of the Constitution if an effective
alternative remedy is available to the aggrieved person or the statute
under which the action complained of has been taken itself contains
a mechanism for redressal of grievance still holds the field."
31. In Southern Electricity Supply Company of Orissa Limited
(SOUTHCO) and another vs. Sri Seetaram Rice Mill, (2012) 2 SCC 108, a
threeJudge Bench held:
"80. It is a settled canon of law that the High Court would not
normally interfere in exercise of its jurisdiction under Article 226 of
the Constitution of India where statutory alternative remedy is
available. It is equally settled that this canon of law is not free of
exceptions. The courts, including this Court, have taken the view that
the statutory remedy, if provided under a specific [pic]law, would
impliedly oust the jurisdiction of the civil courts. The High Court in
exercise of its extraordinary jurisdiction under Article 226 of the
Constitution of India can entertain writ or appropriate proceedings
despite availability of an alternative remedy. This jurisdiction, the
High Court would exercise with some circumspection in exceptional
cases, particularly, where the cases involve a pure question of law or
vires of an Act are challenged. This class of cases we are mentioning
by way of illustration and should not be understood to be an
exhaustive exposition of law which, in our opinion, is neither
practical nor possible to state with precision. The availability of
alternative statutory or other remedy by itself may not operate as an
absolute bar for exercise of jurisdiction by the courts. It will normally
depend upon the facts and circumstances of a given case. The further
question that would inevitably come up for consideration before the
Court even in such cases would be as to what extent the jurisdiction
has to be exercised.
81. Should the courts determine on merits of the case or should they
preferably answer the preliminary issue or jurisdictional issue arising
in the facts of the case and remit the matter for consideration on
merits by the competent authority? Again, it is somewhat difficult to
state with absolute clarity any principle governing such exercise of
jurisdiction. It always will depend upon the facts of a given case. We
are of the considered view that interest of administration of justice
shall be better subserved if the cases of the present kind are heard by
the courts only where they involve primary questions of jurisdiction
or the matters which go to the very root of jurisdiction and where
the authorities have acted beyond the provisions of the Act. However,
it should only be for the specialised tribunal or the appellate
authorities to examine the merits of assessment or even the factual
matrix of the case."
32. In Cicily Kallarackal vs. Vehicle Factory 2012(8) SCC 524, the
Division Bench of this Court held:
"4. Despite this, we cannot help but state in absolute terms that it is
not appropriate for the High Courts to entertain writ petitions under
Article 226 of the Constitution of India against the orders passed by
the Commission, as a statutory appeal is provided and lies to this
Court under the provisions of the Consumer Protection Act, 1986.
Once the legislature has provided for a [pic]statutory appeal to a
higher court, it cannot be proper exercise of jurisdiction to permit the
parties to bypass the statutory appeal to such higher court and
entertain petitions in exercise of its powers under Article 226 of the
Constitution of India. Even in the present case, the High Court has
not exercised its jurisdiction in accordance with law. The case is one
of improper exercise of jurisdiction. It is not expected of us to deal
with this issue at any greater length as we are dismissing this
petition on other grounds.
XXX XXX XXX XXX
9. ........, we hereby make it clear that the orders of the
Commission are incapable of being questioned under the writ
jurisdiction of the High Court, as a statutory appeal in terms of
Section 27A(1)(c) lies to this Court. Therefore, we have no
hesitation in issuing a direction of caution that it will not be a
proper exercise of jurisdiction by the High Courts to entertain writ
petitions against such orders of the Commission."
33. Another Division Bench of this Court in Commissioner of Income Tax
and others vs. Chhabil Dass Agrawal, (2014)1 SCC 603 held:
"11. Before discussing the fact proposition, we would notice the
principle of law as laid down by this Court. It is settled law that non
entertainment of petitions under writ jurisdiction by the High Court
when an efficacious alternative remedy is available is a rule of self
imposed limitation. It is essentially a rule of policy, convenience and
discretion rather than a rule of law. Undoubtedly, it is within the
discretion of the High Court to grant relief under Article 226 despite
the existence of an alternative remedy. However, the High Court
must not interfere if there is an adequate efficacious alternative
remedy available to the petitioner and he has approached the High
Court without availing the same unless he has made out an
exceptional case warranting such interference or there exist sufficient
grounds to invoke the extraordinary jurisdiction under Article 226.
(See State of U.P. v. Mohd. Nooh, Titaghur Paper Mills Co. Ltd. v.
State of Orissa, Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and
State of H.P. v. Gujarat Ambuja Cement Ltd.
12. The Constitution Benches of this Court in K.S. Rashid and Son v.
Income Tax Investigation Commission, Sangram Singh v. Election
Tribunal, Union of India v. T.R. Varma, State of U.P. v. Mohd.
Nooh2 and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras
have held that though Article 226 confers very wide powers in the
matter of issuing writs on the High Court, the remedy of writ is
absolutely discretionary in character. If the High Court is satisfied
that the aggrieved party can have an adequate or suitable relief
elsewhere, it can refuse to exercise its jurisdiction. The Court, in
extraordinary circumstances, may exercise the power if it comes to
the conclusion that there has been a breach of the principles of
natural justice or the procedure required for decision has not been
adopted. [See N.T. Veluswami Thevar v. G. Raja Nainar, Municipal
[pic]Council, Khurai v. Kamal Kumar, Siliguri Municipality v.
Amalendu Das, S.T. Muthusami v. K. Natarajan, Rajasthan SRTC v.
Krishna Kant, Kerala SEB v. Kurien E. Kalathil, A. Venkatasubbiah
Naidu v. S. Chellappan, L.L. Sudhakar Reddy v. State of A.P., Shri
Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari
Dugdha Utpadak Sanstha v. State of Maharashtra, Pratap Singh v.
State of Haryana and GKN Driveshafts (India) Ltd. v. ITO.]
13. In Nivedita Sharma v. Cellular Operators Assn. of India, this
Court has held that where hierarchy of appeals is provided by the
statute, the party must exhaust the statutory remedies before
resorting to writ jurisdiction for relief and observed as follows: (SCC
pp. 34345, paras 1214) "12. In Thansingh Nathmal v. Supt. of
Taxes this Court adverted to the rule of selfimposed restraint that
the writ petition will not be entertained if an effective remedy is
available to the aggrieved person and observed: (AIR p. 1423, para
7) '7. ... 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 Article 226 trench upon
an alternative remedy provided by the statute for obtaining relief.
Where it is open to the aggrieved petitioner to move another
tribunal, or even itself in another jurisdiction for obtaining redress
in the manner provided by a statute, the High Court normally will
not permit by entertaining a petition under Article 226 of the
Constitution the machinery created under the statute to be bypassed,
and will leave the party applying to it to seek resort to the machinery
so set up.'
13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa this Court
observed: (SCC pp. 44041, para 11) '11. ... It is now well
recognised that where a right or liability is created by a statute
which gives a special remedy for enforcing it, the remedy provided by
that statute only must be availed of. This rule was stated with great
clarity by Willes, J. in Wolverhampton New Waterworks Co. v.
Hawkesford in the following passage: (ER p. 495) xxx xxx xxx xxx
14. In Mafatlal Industries Ltd. v. Union of India B.P. Jeevan Reddy,
J. (speaking for the majority of the larger Bench) observed: (SCC p.
607, para
77) '77. ... So far as the jurisdiction of the High Court under Article
226or for that matter, the jurisdiction of this Court under Article
32is concerned, it is obvious that the provisions of the Act cannot
bar and curtail these remedies. It is, however, equally obvious that
while exercising the power under Article 226/Article 32, the Court
would certainly take note of the legislative intent manifested in the
provisions of the Act and would exercise their jurisdiction consistent
with the provisions of the enactment.'"
(See G. Veerappa Pillai v. Raman & Raman Ltd., CCE v. Dunlop
India Ltd., Ramendra Kishore Biswas v. State of Tripura, Shivgonda
Anna Patil v. State of Maharashtra, C.A. Abraham v. ITO, Titaghur
Paper Mills Co. Ltd. v. State of Orissa, Excise and Taxation Officer
cumAssessing Authority v. Gopi Nath and Sons, Whirlpool Corpn. v.
Registrar of Trade Marks, [pic]Tin Plate Co. of India Ltd. v. State of
Bihar, Sheela Devi v. Jaspal Singh and Punjab National Bank v. O.C.
Krishnan.)
15. Thus, while it can be said that this Court has recognised some
exceptions to the rule of alternative remedy i.e. where the statutory
authority has not acted in accordance with the provisions of the
enactment in question, or in defiance of the fundamental principles
of judicial procedure, or has resorted to invoke the provisions which
are repealed, or when an order has been passed in total violation of
the principles of natural justice, the proposition laid down in
Thansingh Nathmal case, Titaghur Paper Mills case and other
similar judgments that the High Court will not entertain a petition
under Article 226 of the Constitution if an effective alternative
remedy is available to the aggrieved person or the statute under
which the action complained of has been taken itself contains a
mechanism for redressal of grievance still holds the field. Therefore,
when a statutory forum is created by law for redressal of grievances,
a writ petition should not be entertained ignoring the statutory
dispensation."
34. In Union of India vs. Brigadier P.S. Gill, (2012) 4 SCC 463, this Court
while dealing with appeals under Section 30 of the Armed Forces Tribunal
Act following the procedure prescribed under Section 31 and its
maintainability, held as follows:
"8. Section 31 of the Act extracted above specifically provides for an
appeal to the Supreme Court but stipulates two distinct routes for
such an appeal. The first route to this Court is sanctioned by the
Tribunal granting leave to file such an appeal. Section 31(1) in no
uncertain terms forbids grant of leave to appeal to this Court unless
the Tribunal certifies that a point of law of general public
importance is involved in the decision. This implies that Section 31
does not create a vested, indefeasible or absolute right of filing an
appeal to this Court against a final order or decision of the Tribunal
to this Court. Such an appeal must be preceded by the leave of the
Tribunal and such leave must in turn be preceded by a certificate by
the Tribunal that a point of law of general public importance is
involved in the appeal.
9. The second and the only other route to access this Court is also
found in Section 31(1) itself. The expression "or it appears to the
Supreme Court [pic]that the point is one which ought to be
considered by that Court" empowers this Court to permit the filing of
an appeal against any such final decision or order of the Tribunal.
10. A conjoint reading of Sections 30 and 31 can lead to only one
conclusion viz. there is no vested right of appeal against a final order
or decision of the Tribunal to this Court other than those falling
under Section 30(2) of the Act. The only mode to bring up the
matter to this Court in appeal is either by way of certificate obtained
from the Tribunal that decided the matter or by obtaining leave of
this Court under Section 31 for filing an appeal depending upon
whether this Court considers the point involved in the case to be one
that ought to be considered by this Court.
11. An incidental question that arises is: whether an application for
permission to file an appeal under Section 31 can be moved directly
before the Supreme Court without first approaching the Tribunal for
a certificate in terms of the first part of Section 31(1) of the Act?
12. In the ordinary course the aggrieved party could perhaps adopt
one of the two routes to bring up the matter to this Court but that
does not appear to be the legislative intent evident from Section
31(2) (supra). A careful reading of the section shows that it not only
stipulates the period for making an application to the Tribunal for
grant of leave to appeal to this Court but also stipulates the period
for making an application to this Court for leave of this Court to file
an appeal against the said order which is sought to be challenged.
13. It is significant that the period stipulated for filing an application
to this Court starts running from the date beginning from the date
the application made to the Tribunal for grant of certificate is
refused by the Tribunal. This implies that the aggrieved party cannot
approach this Court directly for grant of leave to file an appeal
under Section 31(1) read with Section 31(2) of the Act.
14. The scheme of Section 31 being that an application for grant of a
certificate must first be moved before the Tribunal, before the
aggrieved party can approach this Court for the grant of leave to file
an appeal. The purpose underlying the provision appears to be that if
the Tribunal itself grants a certificate of fitness for filing an appeal,
it would be unnecessary for the aggrieved party to approach this
Court for a leave to file such an appeal. An appeal by certificate
would then be maintainable as a matter of right in view of Section
30 which uses the expression "an appeal shall lie to the Supreme
Court". That appears to us to be the true legal position on a plain
reading of the provisions of Sections 30 and 31."
35. Thus, we find that though under Section 30 no person has a right of
appeal against the final order or decision of the Tribunal to this Court other
than those falling under Section 30(2) of the Act, but it is statutory appeal
which lies to this Court.
36. The aforesaid decisions rendered by this Court can be summarised as
follows:
The power of judicial review vested in the High Court under Article
226 is one of the basic essential features of the Constitution and any
legislation including Armed Forces Act, 2007 cannot override or
curtail jurisdiction of the High Court under Article 226 of the
Constitution of India.(Refer: L. Chandra and S.N. Mukherjee).
(ii)The jurisdiction of the High Court under Article 226 and this
Court under Article 32 though cannot be circumscribed by the
provisions of any enactment, they will certainly have due regard to
the legislative intent evidenced by the provisions of the Acts and
would exercise their jurisdiction consistent with the provisions of the
Act.(Refer: Mafatlal Industries Ltd.).
(iii)When a statutory forum is created by law for redressal of
grievances, a writ petition should not be entertained ignoring the
statutory dispensation. (Refer: Nivedita Sharma).
(iv)The High Court will not entertain a petition under Article 226 of
the Constitution if an effective alternative remedy is available to the
aggrieved person or the statute under which the action complained of
has been taken itself contains a mechanism for redressal of grievance.
(Refer: Nivedita Sharma).
37. Article 141 of the Constitution of India reads as follows: "Article
141.Law declared by Supreme Court to be binding on all courts. The law
declared by the Supreme Court shall be binding on all courts within the
territory of India."
38. In Executive Engineer, Southern Electricity Supply Company of
Orissa Limited(SOUTHCO) this Court observed that it should only be for the
specialised tribunal or the appellate authorities to examine the merits of
assessment or even the factual matrix of the case.
39. In Chhabil Dass Agrawal this Court held that when a statutory
forum is created by law for redressal of grievances, a writ petition should not
be entertained ignoring the statutory dispensation.
40. In Cicily Kallarackal this Court issued a direction of caution that it
will not be a proper exercise of the jurisdiction by the High Court to
entertain a writ petition against such orders against which statutory appeal
lies before this Court.
41. In view of Article 141(1) the law as laid down by this Court, as
referred above, is binding on all courts of India including the High Courts."
8.4 Yet in another decision of recent time reported in (2018) 1
SCC 626 in case of Agarwal Tracom Private Limited vs. Punjab
National Bank and ors. also, while finding that there is a specific
remedy available under the statute, the court has observed in
paragraphs 32 and 33 which read as under :
"33. In United Bank of India vs. Satyawati Tondon & Ors., (2010) 8
SCC 110, this Court had the occasion to examine in detail the
provisions of the SARFAESI Act and the question regarding invocation
of the extraordinary power under Article 226/227 in challenging the
actions taken under the SARFAESI Act. Their Lordships gave a note of
caution while dealing with the writ filed to challenge the actions taken
under the SARFAESI Act and made following pertinent observations
which, in our view, squarely apply to the case on hand:
"42. There is another reason why the impugned order should be
set aside. If Respondent 1 had any tangible grievance against the
notice issued under Section 13(4) or action taken under Section
14, then she could have availed remedy by filing an application
under Section 17(1). The expression "any person" used in Section
17(1) is of wide import. It takes within its fold, not only the
borrower but also the guarantor or any other person who may be
affected by the action taken under Section 13(4) or Section 14.
Both, the Tribunal and the Appellate Tribunal are empowered to
pass interim orders under Sections 17 and 18 and are required to
decide the matters within a fixed time schedule. It is thus evident
that the remedies available to an aggrieved person under the
SARFAESI Act are both expeditious and effective.
43. Unfortunately, the High Court overlooked the settled law
that the High Court will ordinarily not entertain a petition under
Article 226 of the Constitution if an effective remedy is available
to the aggrieved person and that this rule applies with greater
rigour in matters involving recovery of taxes, cess, fees, other
types of public money and the dues of banks and other financial
institutions. In our view, while dealing with the petitions
involving challenge to the action taken for recovery of the public
dues, etc. the High Court must keep in mind that the legislations
enacted by Parliament and State Legislatures for recovery of such
dues are a code unto themselves inasmuch as they not only
contain comprehensive procedure for recovery of the dues but also
envisage constitution of quasijudicial bodies for redressal of the
grievance of any aggrieved person. Therefore, in all such cases, the
High Court must insist that before availing remedy under Article
226 of the Constitution, a person must exhaust the remedies
available under the relevant statute.
44. While expressing the aforesaid view, we are conscious that the
powers conferred upon the High Court under Article 226 of the
Constitution to issue to any person or authority, including in
appropriate cases, any Government, directions, orders or writs
including the five prerogative writs for the enforcement of any of
the rights conferred by Part III or for any other purpose are very
wide and there is no express limitation on exercise of that power
but, at the same time, we cannot be oblivious of the rules of self
imposed restraint evolved by this Court, which every High Court is
bound to keep in view while exercising power under Article 226 of
the Constitution.
45. It is true that the rule of exhaustion of alternative remedy
is a rule of discretion and not one of compulsion, but it is difficult
to fathom any reason why the High Court should entertain a
petition filed under Article 226 of the Constitution and pass
interim order ignoring the fact that the petitioner can avail
effective alternative remedy by filing application, appeal, revision,
etc. and the particular legislation contains a detailed mechanism
for redressal of his grievance."
11. With the aforesaid situation, it appears that the original
order of admission and grant of interim relief till final disposal of the
petition is no doubt after brief hearing of learned Assistant Government
Pleader, but the real contesting respondents were not heard and there
was no chance for them to project the case before the petitioners who
have sought admission of the matter and therefore, the general
proposition is that once the petition is admitted, no question relegating
the petitioners to alternative remedy will not be available to the
petitioners since the said admission was practically exparte qua the
contesting respondents. However, it appears from the order originally
with tentative opinion which has been generated about availing
alternative remedy is also not after bipartite hearing and therefore, such
observations which are contained in the order of coordinate bench dated
04.08.2020 are practically the exparte observations in nature though
there is a reference that the respondents have emphasized the issue
related to maintainability in light of the alternative remedy. Here the
court has perused the averments made on oath in Civil Application No.1
of 2020 filed by respondent No.2 to vacate the interim relief and having
perused the manner in which the copy of the petition was not made
available to the learned advocate and straightway pressed for an ex
parte order, the Court in such a situation is of the considered opinion
that it would be desirable to approach the alternative forum. Such
averments contained in the said Civil Application have gone undenied by
the petitioners as no reply is filed to that effect. The said averments, the
Court would like to reproduce hereunder :
"6. That the present Applicant, came to know through the
Gujarat High Court website that the present opponent no.1 to 5
has filed the captioned writ petition against the order of the
Learned District Collector, Gandhinagar. The present Applicant
instructed his advocate to file his Vakalatnama and on the
instruction of the Applicant, the Advocate of the Applicant
requested for the link to the Court master.
7. That on the date of hearing the Hon'ble Court was pleased
to give the link to the Advocate of the Applicant but he was orally
allowed to join after the submissions of the Petitioners were over.
The Advocate of the Applicant without getting any copies of the
Petition memo and knowing nothing about the averments taken
therein requested this Hon'ble Court that no interim relief may be
granted to the Petitioners on the ground that an alternative
remedy is very much available to the petitioners and the
Applicant has filed a caveat before the concerned authority but as
mentioned earlier this Hon'ble Court had already heard the other
side that is original petitioners, the Hon'ble Court passed the said
order dated 04.08.2020 without appreciating the fact that
present Applicant was not given any copy of the petition memo
and was unaware of the averments taken therein.
8. That it is most respectfully submitted that the Applicant
herein may not be considered as heard in the lights of the
aforementioned. Inf act, the Applicant has neither heard on the
averments made in the petition and nor was he heard on the oral
submission made by the Petitioners. Hence, the Applicant prays
for vacating the interim relief granted by this Hon'ble Court in
order dated 04.08.2020 being an exparte one, in the interest of
justice.
9. That the Applicant bows down to this Hon'ble Court for
providing the link to the Advocate of the present Applicant.
However, the same may not be construed in a way that the
present Applicant was heard as no fair opportunity was given to
the Advocate of the Applicant; essentially in the circumstances
enumerated hereinabove."
12. Under this set of circumstances, the Court is of the clear
opinion that when a specific grievance is raised on oath about the
hearing issue before admission of the matter and having not been
countered by way of any reply on oath, in a situation like this, this Court
is of the opinion that when the land in question entangled in series of
litigations, the details of which have been provided by the petitioners
themselves, in view of complexity of factual details, it would be for the
competent authority to examine the same since the said forum is created
by the statute. Further, the disputed questions of facts are not in the
realm of exercise of extraordinary jurisdiction and in addition thereto,
since the revenue entries are not conferring any title or interest in the
land, this Court is not inclined to exercise extraordinary jurisdiction.
13. So in a situation like this peculiar in nature, the judgments
which have been pointed out before this Court having gone through, the
same are not of any assistance to the petitioners and further the other
contentions which have raised with respect to entries and the
contentions touching to the factual details, this Court has refrained itself
from expressing any opinion as the same would properly be adjudicated
by the competent authority where the petitioners have to approach.
Hence, without expressing any opinion on merits, this petition is
dismissed with a direction that the petitioners shall approach the
competent authority created by the statute as an alternative remedy and
as and when such approach is made by the petitioners, the same shall be
dealt with by the competent authority on merits instead of any technical
issues about time schedule since the petitioners exhausted some time
while litigating before this Court in present proceedings.
14. Under normal circumstance, this Court must have examined
all the issues which have been raised in the petition, but in view of
aforesaid recent trend about availing of alternative remedy, the Court
has refrained from examining the contentions of the petitioners since all
those issues including the point of authority of Collector to pass an order
can also be examined by the Forum which is available to the petitioners.
Accordingly, without expressing any opinion on merits, this Court is not
inclined to accept the petition and the same accordingly stands
dismissed.
15. Further, in view of the fact that the interim relief is
operating in favour of the petitioners right from 04.08.2020, the same
shall remain operative till the petitioners approach the alternative
remedy forum by way of preferring appropriate proceedings including an
application for seeking interim relief.
16. Since interim relief is ordered to be continued as stated
above, the petitioners are directed to approach the said alternative
remedy for assailing the order of the Collector within a period of two
weeks from today and till the interim relief application gets decided
which may be submitted by the petitioners before the said forum, the
interim relief granted by virtue of order dated 04.08.2020 is ordered to
continue. It is expected that the said authority shall make an endeavor to
decide the interim relief application at the earliest and preferably within
a period of three weeks from the date of filing of proceedings by the
petitioners.
17. With the above observations and direction, the petition
stands dismissed. Consequently, the civil applications also stand
disposed of.
(ASHUTOSH J. SHASTRI, J)
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