Raja Jitendra Singh v. State of Uttar Pradesh — 1968 DIGILAW 199 (ALL)

JUDGMENT Lakshmi Prasad, J. - Raja Jitendra Singh prefers this appeal from the judgment of a learned single Judge by which his petition under Article 226 of the Constitution for certiorari quashing assessment under the Large Land Holdings Tax Act made against him in respect of the year 1358 fasli has been dismissed. The appellant succeeded to the estate of Chandapur in the year 1945 when he was a minor. The management of his estate was accordingly taken over by the Court of Wards. On the abolition of the Court of Wards the management of his estate was entrusted to the District Judge, Rae Bareli and it was ultimately released on the appellants' attaining majority on 4th March, 1958. The appellants' Sir and Khudkasht land in all the villages except in village Chandapur was sublet to tenants when the Court of Wards took management and that position continued till after the abolition of zamindari. The appellant paid land revenue more than Rs. 250/- a year. The allegation in the petition is that on these facts the sub-tenants became adhivasis and subsequently sirdars but under a misapprehension the appellant believed that since he was a disabled person, these sub-tenants were only asamis and accordingly he continued to realise rent from them as also made transfers of some such land though in the eye of law such transfers could have no effect. Initially an assessment to the tune of above Rs. 58,000/- under the Large Land Holdings Tax Act was made. The appellant preferred an appeal which was allowed and the case was remanded for assessment afresh. A notice was then again issued on 6th March, 1963. The appellant filed objection to the effect that the sir land in different villages had been let out to sub-tenants and that they became their adhivasis and subsequently with effect from 30th October, 1954 their sirdars and accordingly the same was not to be included in his land holding for the purposes of assessment. This objection of the appellant was rejected by respondent No. 3, the Assessing Authority, by his order dated 14th February, 1964 a copy of which is annexure 1 to the petition. The appellant then preferred an appeal and the same was rejected by the Commissioner, Luck-now Division, respondent No. 2 by his order dated 15th April, 1964 a true copy of which is annexure 2 to the petition. The appellant then preferred an appeal and the same was rejected by the Commissioner, Luck-now Division, respondent No. 2 by his order dated 15th April, 1964 a true copy of which is annexure 2 to the petition. By his writ petition the appellant wanted the said two orders to be quashed. He urged in the petition that even though he could prefer a revision from the appellate order under Section 12 of the Large Land Holdings Tax Act, he did not do so because of the Full Bench decision of the Board of Revenue in the case of Abdul Rashid Khan v. The State, 1961 RD 118 and approached this Court straightaway for certiorari. The petition was opposed by the opposite-parties and a counter-affidavit was filed on their behalf. The material facts stated above are not controverted in the counter affidavit. The learned single Judge dismissed the petition on two grounds. Firstly, he held that the petitioner having failed to avail himself of the alternative remedy by preferring a revision from the appellate order annexure 2 was not entitled to the discretionary relief under Article 226 of the Constitution of certiorari. Secondly, he held that, on the facts asserted in the petition itself, it was clear that the petitioner at any rate held the land in question during the year of assessment and, as such, he could not escape assessment. The appellant challenges both these findings. The learned counsel for the parties have been heard at some length in this special appeal. The learned Chief Standing Counsel appearing for the respondents - has strenuously argued raising a preliminary objection to the effect that in so far as the learned single Judge has exercised discretion in refusing relief to the appellant because of the appellant's failure to avail himself of the alternative remedy open to him under the provisions of the Act itself, the appeal must fail on that ground alone. In support of his contention he places reliance on the case of Rehmatunnisa Begum v. Prince, A.I.R. 1917 Privy Council 116 and on the case of Ishwarlal Jesinghbhai Patel v. State of Gujarat, Civil Appeal No. 583 of 1965 decided by S.C. on 19th March 1968. In support of his contention he places reliance on the case of Rehmatunnisa Begum v. Prince, A.I.R. 1917 Privy Council 116 and on the case of Ishwarlal Jesinghbhai Patel v. State of Gujarat, Civil Appeal No. 583 of 1965 decided by S.C. on 19th March 1968. In the Privy Council case it is said that it is opposed to sound practice for an appellate court to substitute its discretion for that of the court from which an appeal has been preferred. But where the lower appellate court had substituted its discretion for that of the trial court and the Privy Council found that the discretion exercised by the trial court was more sound, the discretion of the trial court was restored. In the Supreme Court case it is observed in the last but one paragraph : "The High Court, in the exercise of its discretion, held that in this case they would not be justified in entertaining a petition for the issue of writ of certiorari or any other writ when the appellant had another alternative remedy which was equally efficacious and was not resorted to. Sitting in appeal against the order of the High Court we would be loath to interfere with the exercise of discretion by the High Court." Having regard to the facts of the case, it seems more appropriate that the determination of this controversy may, for the moment, be deferred till the determination of the other question, namely, if or not the Assessing Authority erred in including the land in dispute in the land holding of the appellant for making the assessment under the provisions of the Act. As already stated, the material facts mentioned in the petition are not in controversy. The view taken by the appellate authority, as appears from annexure-2, is that in so far as the appellant remained a minor till 1958 he was a disabled person and, as such, the subtenants who held the land in question, i.e., the land which has been included in the land holding of the appellant for the purposes of the assessment cannot but be taken to have held the land all the time as mere assamis. The contention of the learned counsel for the appellant is that this view of the authorities under the Act is manifestly erroneous as appears from a perusal of Sections 20, 21 (1) (h) and Explanation to Section 16 of the U.P. Zamindari Abolition and Land Reforms Act. Bereft of portions not necessary for the purposes of the case Section 20 provides that every person who on the date immediately preceding the date of vesting was a tenant of Sir shall unless he has become a bhumidhar of the land under sub-sec. (2) of Section 18 or an asami under clause (h) of Section 21 be called adhivasi of the land. Under Section 21 (1) (h) a tenant of Sir land referred to in sub-clause (a) of clause (i) of the Explanation under Section 16 is to be an asami thereof. A glance at Section 16 would show that to attract sub-clause (a) of clause (i) of Explanation to Section 16 sir or khudkasht must be of an intermediately paying Rs. 250/- or less annually as land revenue. It is thus abundantly clear on reading the aforesaid provisions together that the sub-tenants of the appellant could not be asamis notwithstanding the fact that the appellant continued to be a minor since the date of sub-letting till long after the date of vesting, but became adhivasis and subsequently sirdars with effect from 30th October, 1954. That such is the legal position has not been controverted on behalf of the respondents. So there is no difficulty in arriving at the conclusion that the view taken by the Assessing Authority and affirmed by the Commissioner in regard to the status of the sub-tenants is manifestly erroneous. However, the learned single Judge has held, without adverting to that aspect of the matter, that the appellant was liable to assessment in respect of this entire land for the simple reasons that on his own showing he treated himself to be a bhumidhar thereof all along with the result that he realised rents and made transfers. However, the learned single Judge has held, without adverting to that aspect of the matter, that the appellant was liable to assessment in respect of this entire land for the simple reasons that on his own showing he treated himself to be a bhumidhar thereof all along with the result that he realised rents and made transfers. Learned counsel for the appellant challenges this approach of the learned single Judge on the ground that on the facts asserted in the petition and not controverted by the respondents the appellant cannot be taken either to have held or occupied the land of which the sub-tenants have become sirdars with effect from 30th October, 1954 and, as such, that land could not be included in the land holding of the appellant for the purposes of the assessment under the Act. Section 3 of the Act is the charging section which provides for the assessment of the tax on the annual value of each land holding. The expression "land holding" is defined in Section 4 of the Act which says "For the purposes of this Act, "land holding" means the aggregate of all land held or occupied on the first day of July each year by a land holder " The argument is that on the facts not in controversy the appellant could not be taken to have occupied the land in question and the view taken by the learned Single Judge that the appellant must be taken to have held it for the reason that he treated himself to be a bhumidhar of it cannot be sustained because the expression "held" occurring in Section 4 of the Act cannot but be interpreted to mean that the appellant held it under title. In support of his contention he places reliance on two cases. In the Full Bench case of Budhan Singh v. Nabi Bux, 1961 ALJ 536 the word "held" occurring in Section 9 of the U.P. Zamindari Abolition and Land Reforms Act came up for interpretation. The view of the majority was that the word "held" in Section 9 of the U.P. Zamindari Abolition and Land Reforms Act does not connote a title of a trespasser but it refers to a title that had a legal origin. The other case relied on by the learned counsel is K.K. Handique v. The Member, Board of Agricultural Income Tax, Assam, A.I.R. 1966 SC 1191. The other case relied on by the learned counsel is K.K. Handique v. The Member, Board of Agricultural Income Tax, Assam, A.I.R. 1966 SC 1191. Reliance is place on the following observations in paragraph 3 of the report at page 1192 : - "The expression "holds" includes a two fold idea of the actual possession of a thing and also of being invested with a legal title." It does not appear necessary to pursue this matter in any detail because the learned, Chief Standing Counsel conceded that the expression "held" occurring in Section 4 of the Act cannot be interpreted to mean held otherwise than under title. He, how-ever, argued that in so far as the appellant admittedly realised rents from the actual tillers of the land in question, he must be taken to have occupied that entire land through those tenants. It is difficult to accept this contention of the learned Chief Standing Counsel. As appears from the relevant portion of Section 4 reproduced above, the Legislature has used the expression "held or occupied". The fact that these two expressions have been used clearly indicates that while one is intended to cover the case of a landholder not in actual possession but in possession through tenants, the other is to cover the case of a landholder in actual possession. The underlying idea of using both the expressions is that liability to assessment is not dependant on actual possession. Holding of the land holding whether by actual possession or through occupation of others is sufficient for the purposes of assessment under the Act. If the expression "occupied" could itself convey the idea of holding the property through another's occupation, there was hardly any necessity for using another expression actually used by the Legislature, namely, "held". Obviously the two expressions have been used in contradistinction to each other. The expression "occupied" used in Section 4 cannot but be interpreted to signify actual possession as against the idea of holding the land through another's occupation which is conveyed by the other expression, namely, "held". It is no body's case that the appellant actually occupied the land in question. The expression "occupied" used in Section 4 cannot but be interpreted to signify actual possession as against the idea of holding the land through another's occupation which is conveyed by the other expression, namely, "held". It is no body's case that the appellant actually occupied the land in question. Having in view the correct meaning of the expression "held" occurring in Section 4 of the Act, the view of the learned Single Judge that because he realised rents and made certain transfers even though legally speaking, as shown above with reference to Sections 16, 20 and 21 of the Zamindari Abolition and Land Reforms Act, he had no title - to the land in the eye of law, cannot be upheld. The contention of the learned counsel for the appellant that on the facts of the case not in controversy the appellant could not be deemed to have held or 82 occupied the land' in question during the relevant period notwithstanding the fact that he realised rent and made transfers, appears to be correct and must be accepted. Now we may advert to the question raised by the learned Chief Standing Counsel as a preliminary objection. As indicated above, the explanation of the appellant for not availing the alternative remedy is that in view of the Full Bench decision of the Board of Revenue it would-have been simply futile on his part to approach the Board of Revenue in revision under Section 12 of the Act. It is well-settled that the existence of an alternative remedy creates no bar to the exercise of jurisdiction under Article 226 of the Constitution but it is only a circumstance to be taken into consideration in the matter of granting writs. In this connection reference may be made to the observations made on page 884 in the case of Union of India v. T.R. Varma, A.I.R. 1957 SC 882. In Union of India v. Hariram Shamji Thakkar, Civil Appeal No. 794 of 1967 decided on 5.2.1968 the Supreme Court observes : "If there exists an adequate alternative remedy the High Court may leave the party aggrieved to seek relief before the Tribunal of appeal. But the rule is not inexorable. Existence of a right of appeal does not bar the jurisdiction of the High Court to entertain a Writ petition at the instance of an aggrieved party. But the rule is not inexorable. Existence of a right of appeal does not bar the jurisdiction of the High Court to entertain a Writ petition at the instance of an aggrieved party. If the alternative remedy is onerous or may not be equally efficacious or for other sufficient reason, the High Court may examine the validity of acts done by official bodies, alternative remedy notwithstanding. The question is one of discretion and not of jurisdiction." In Collector of Central Excise and Land Customs, Shillong v. Sanawarmal Purohit, Civil Appeals No. 1362 and 1363 of 1967 decided on 16th February, 1968 the Supreme Court observes : "But the existence of a right of appeal does not bar the jurisdiction of the High Court to entertain, in appropriate, cases, a petition for the issue of a writ of certiorari. Ordinarily the High Court will decline to be aggrieved by the order of a quasi judicial authority has exhausted the remedies, if any, available to him. The rule that before a writ of certiorari is claimed an aggrieved party should exhaust the statutory remedies is one of convenience and not a rule of law. If the inferior tribunal has acted without, or patently in excess of jurisdiction, or has conducted the proceeding before it in manner contrary to the rules of natural justice and fair paly, the High court would be competent to exercise its power, to issue the prerogative writ of certiorari to correct the order of the Court or Tribunal, even if an appeal to a departmental authority or tribunal was open and the aggrieved party did not avail himself of the remedy." Thus the settled legal position appears to be that it is the existence of an equally effective and efficacious remedy alone which can be a ground fro refusing relief under Article 226 of the Constitution. Apart from the fact that the remedy open under section 12 of the Act is a limited remedy having regard to the scope of revision provided thereunder, it is clear that in view of the Full Bench decision of the Board of Revenue in the case referred to above, since the entries in the revenue record indicated that the appellant was the bhumihar and the actual tilers were only asamis, it would have been a futile attempt on the part of the appellant to approach the Board of Revenue by means of an application in revision under Section 12 of the Act. In the circumstances it is impossible to hold on the facts of the present case that by not filing a revision under Section 12 of the Act5 the appeal failed to avail himself of an equally efficacious and effective remedy so as to disentitle himself to the relief of certiorari which is a discretionary relief. In that view of the matter it follows that the discretion in refusing relief to the appellant on a ground which in fact provided no basis for the exercise of discretion. In the Supreme Court case relied upon by the learned Chief Standing Counsel it is found as a fact in the very paragraph, preceding the paragraph in which occur the observation reproduced above, that "There was, therefore, an adequate alternative remedy available to the appellant which he has not availed to the appellant which he has not availed himself of." In case in hand the position appears to be different. Here as has been found, there was in fact not adequate alternative remedy open to the appellant and if would have been futile on his part to approach the Board of Revenue under Section 12 of the Act. What has been laid down by the Privy Council in the Case cited by the learned Chief Standing Counsel is that it is that it is opposed to sound practice for an appellate court to substitute its discretion for that of the court from which an appeal has been preferred. It does not mean that the appellate court is not entitled to interfere even when it comes to the conclusion that the very basis on which depends the exercise of discretion by the court from which an appeal has been preferred is non-existent. It does not mean that the appellate court is not entitled to interfere even when it comes to the conclusion that the very basis on which depends the exercise of discretion by the court from which an appeal has been preferred is non-existent. It shall thus appear that neither of the authorities referred to by the learned Chief Standing Counsel appears to assist him. The position remains that the discretionary relief only where it is found that the party seeking the relief has failed to avail himself of an equally effective and efficacious remedy. On the facts of the present case it appears that the remedy under section 12 of the Act which the appellant failed to avail himself of can not means be said to be an efficacious and effective remedy. So in fact there arose no occasion to refuse the relief on the score. In the end we allow the appeal with costs and quash the orders annexures 1 and act 2 wit the direction that assessment may be made afresh according to law in the light of the observation made in the body of the judgment. Appeal allowed.