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1994 DIGILAW 878 (RAJ)

BHAGIRATH v. STATE OF RAJASTHAN

1994-11-10

R.R.YADAV

body1994
Judgment R. R. YADAV, J. ( 1 ) THE petitioners have filed the instant writ petition seeking the relief to quash the orders of the Deputy Commissioner, Colonisation, Suratgarh dated 11-7l979 and 6-12-1982 vide Annxs. 6 and 8 respectively passed in favour of respondent No. 5 for making allotment of the land in his favour and for directing issuance of patta in pursuance of the order dated 11-7-1979. The petitioners are further seeking relief by means of the instant writ petition for quashing the order dated 6-12-1982 (Annx. 9) to the writ petition passed by the same authority rejecting the application of the petitioner No. 2 for permanent allotment of the surplus land of petitioner No. 1. ( 2 ) AFTER service of the notices, respondent No. 5 has filed counter-affidavit, denying the allegations made in the writ petition. A preliminary objection is raised on behalf of respondent No. 5 that against the impugned orders mentioned above, the petitioners have an alternative remedy of filing an appeal and revision as contemplated under Rule 23 of the Rajasthan Colonisation (Allotment and Sale of Government Land in Rajasthan Canal Project Area) Rules, 1975 (hereinafter referred to as the Rules of 1975 ). ( 3 ) THE aforesaid fact is not disputed by the learned counsel for the petitioners that against the impunged orders, an appeal and revision are maintainable under Rule 23 of the Rules of 1975 but according to the learned counsel, is this question was not raised at the stage of admission and the writ petition was admitted and ad interim stay order was granted, therefore, according to him after admission and after grant of ad interim stay order, the preliminary question of alternative remedy cannot be raised. ( 4 ) ON the other hand, learned counsel for the respondents jointly submitted that it is apparent on the face of record and also from perusal of the Annx. 9 to the writ petition that the claim of allotment of petitioner No. 2 was rejected by respondent No. 2 on the ground that the area claimed by petitioner No. 2 to be permanently allotted in his favour is not surplus land of petitioner No. 1. According to the learned counsel for the respondents, this disputed question of fact cannot be gone into under Art. 226 of the Constitution of India. According to the learned counsel for the respondents, this disputed question of fact cannot be gone into under Art. 226 of the Constitution of India. ( 5 ) IN my humble opinion an alternative remedy is not an absolute bar for invoking the extraordinary jurisdiction of this Court under Art. 226 of the Constitution of India. It is self-imposed limitation upon this Court to do justice between the parties and also to prevent injustice between the parties. The argument of the learned counsel for the petitioners to the effect that once writ petition is admitted and ad interim stay order is passed, the respondents cannot be allowed to raise a preliminary objection about existence of an alternative remedy is not acceptable to me. In fact usually writ petitions and ad interim stay orders are passed ex parte and only some of the writ petitions and ad interim stay orders are passed after serving notices to the respondents. In order to adjust the equity between the aforesaid two categories of writ petitions if the respondents took the plea of existence of an alternative remedy at the time of filing of reply to the writ petition, then such plea of existence of an alternative remedy would be entertained by this Court irrespective of the fact the writ petition was already admitted and ad interim stay order was obtained earlier. I am further of the opinion that if such plea about the existence of an alternative remedy is not raised by the respondents yet this Court can entertain such plea of an alternative remedy suo motu. ( 6 ) IT is true that the disputed question of fact cannot be gone into under Art. 226 of the Constitution of India but if conscience of this Court is pricking then no one should be allowed to suffer due to incorrect and ill-advice in invoking the extraordinary jurisdiction of this Court under Art. 226 of the Constitution of India. It is an admitted fact that peasantry of Rajasthan is socially, educationally and economically in disadvantaged position, therefore, such class of people should not be denied justice on mere technicalities of forum. I am further of the opinion that if technicalities are pitted against the substantial justice then the Court of law should see that the substantial justice should not be allowed either to scape or slide. I am further of the opinion that if technicalities are pitted against the substantial justice then the Court of law should see that the substantial justice should not be allowed either to scape or slide. ( 7 ) IT is settled principle of law that judicial review is a basic feature of our Constitutional Philosophy. In the instant case, it is true that the prescribed authority held that the area claimed by petitioner No. 2 to be permanently allotted in his favour, is not surplus land of his father, petitioner No. 1. It is further true that the said question cannot be decided without entering into the factual controversy, which is beyond the scope of Art. 226 of the Constitution of India. This Court, in exercise of its extraordinary jurisdiction under Art. 226 of the Constitution of India is not capable to substitute the aforesaid finding of fact with its own finding but at the same, this finding of fact cannot be allowed to attain finality without judicial review as contemplated under Rule 23 of the Rules of 1975. ( 8 ) LOOKING to the aforesaid facts and circumstances of the present case, I am of the opinion that on preliminary objection of an alternative remedy raised by the respondents, the instant petition should not be thrown out of the Court. As a matter of fact, it is a fit case in which the petitioners are directed to file an appeal before the Revenue Appellate Authority contemplated under Rule 23 of the Rules of 1975 within 30 days from today. The aforesaid period of 30 days is to be computed from today. ( 9 ) I hereby direct the Revenue Appellate Authority that if any, such appeal is filed by the petitioners within 30 days from today before him then the said appeal will be treated within limitation and will be decided on merit after giving opportunity of hearing to both the parties. Both the parties present before me gave undertaking to participate in the proceedings and promised not to seek any unnecessary adjournment on some pretext or the other. ( 10 ) THE learned counsel for the petitioners invited my attention to the ad interim stay order passed by this Court on 11-10-1983 by means of which the dispossession from the agricultural land in dispute situated in Murabba Nos. ( 10 ) THE learned counsel for the petitioners invited my attention to the ad interim stay order passed by this Court on 11-10-1983 by means of which the dispossession from the agricultural land in dispute situated in Murabba Nos. 200/459, 200/460 and 200/ 261 of Chak No. 9 A. S. was stayed. He submitted before me that till the decision of the appeal, the ad interim stay order granted by this Court on 11-10-1983 may remain operative. In support of his aforesaid contention, he placed reliance on a decision rendered by the Division Bench of this Court in Central India Machinery Manufacturing Co. Limited v. The Superintendent, Central Excise, Bharatpur, reported in 1990 (2) R. In the aforesaid decision, the Division Bench of this Court consisting of Honble Shri K. C. Agrawal, C. J. (as he then was) and Honble Shri B. R. Arora, J. had passed an order keeping the ad interim order in operation for a period of three months. ( 11 ) IN my humble opinion, the instant case is squarely covered by the decision given in Central India Machinery Manufacturing Co. Limited (supra), thus it would be expedient in the interest of justice to keep the ad interim stay order dated 11-10-1983 mentioned in the preceding paragraph to remain in operation till decision of the appeal. The Revenue Appellate Authority is hereby directed to decide the appeal expeditiously preferably within a period of six months from today. As a result of the afore-mentioned discussion, the instant writ petition is finally disposed of accordingly. The petitioners are hereby directed to pay a cost of Rs. 500. 00 to the contesting respondent No. 5, Gopala Ram s/o Shri Ram Lal, who has filed return in the instant writ petition. The cost of Rs. 500. 00 is to be paid to respondent No. 5 within 30 days from today before filing the appeal. If the petitioners failed to file an appeal within 30 days from today or failed to pay to Rs. 500. 00 as cost of respondent No. 5 within the specified period of one month from today, the instant writ petition will be deemed to have been dismissed without reference to this Court on the ground of an alternative statutory remedy as contemplated under Rule 23 of the Rules of 1975. 500. 00 as cost of respondent No. 5 within the specified period of one month from today, the instant writ petition will be deemed to have been dismissed without reference to this Court on the ground of an alternative statutory remedy as contemplated under Rule 23 of the Rules of 1975. After dictation of the judgment in open Court, the learned Members of the Bar present in the Court make a request to mark this decision reportable. The request is allowed and the judgment is made reportable. Order accordingly.