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2005 DIGILAW 1052 (RAJ)

Dinesh Kumar Choudhary v. State of Rajasthan

2005-04-06

K.S.RATHORE

body2005
Honble RATHORE, J.–Heard learned counsel for the parties. Petitioners submit that they are bona fide purchaser and purchased the land from original khatedar. The controversy arise when the Tehsildar issued a notice u/s. 183 of Tenancy Act. The land, which are possessed by the petitioners originally belongs to SC community and the entry in the revenue record is made contrary to the provisions. (2). Learned counsel for the petitioners also referred Sec. 183-B of the Rajasthan Tenancy Act, 1955, which is reproduced hereunder:- ``Summary ejectment of trespassers of the land held by a member of a Scheduled Caste or a Scheduled Tribe.-(1) Notwithstanding anything to the contrary contained in any provision of this Act, a trespasser who has taken or retained possession, without lawful authority of the land held by a tenant belonging to Scheduled caste or Scheduled Tribe shall be liable to rejectment on an application of the person or persons entitled to evict him (or on the application in the prescribed manner of a public servant, authorised by the State Government in this behalf) and shall be further liable to pay as penalty for each agricultural year during the whole or any part whereof he has been in such possession, a sum which may extend to [fifty times] the annual rent. (2) The inquiry on an application under sub-sec. (1) shall be made in a summary manner (and shall concluded as far as practicable within the prescribed period and after) affording a reasonable opportunity of being heard to the person alleged to be a trespasser. (3). After referring Sec. 183 he submits that the Tehsildar have to conduct a summary trial and after affording opportunity of being heard to the petitioner can only pass the order. (4). Mr. Pareek submits that herein the instant case though counsel for the petitioner was appeared before the Tehsildar but the submissions made on behalf of the petitioner were not considered properly by the Tehsildar and the impugned order dated 2.12.2004 has been passed. Petitioners also challenged the order impugned passed by the Tehsildar on several count. (5). (4). Mr. Pareek submits that herein the instant case though counsel for the petitioner was appeared before the Tehsildar but the submissions made on behalf of the petitioner were not considered properly by the Tehsildar and the impugned order dated 2.12.2004 has been passed. Petitioners also challenged the order impugned passed by the Tehsildar on several count. (5). He referred Schedule III of Rajasthan Tenancy Act, 1955 at Item No. 68-C. The proceedings can be initiated u/s. 183-B on application for summary ejectment of trespasser of the land held by a member of Scheduled Caste or Scheduled Tribes within a period of 12 years from the date of accrual of the cause of action. (6). He submits that this aspect has also not been properly considered that no application whatsoever has been made for ejectment. Only on the report of the Patwari the summary ejectment proceedings has been initiated against the petitioners u/s. 183-B and that too after lapse of 12 years. (7). Learned counsel for the petitioners further submits that the Tehsildar has not properly followed the procedure laid down u/s. 183-B of the Tenancy Act and without considering the legal submissions raised on behalf of the petitioners passed the impugned order dated 2.12.2004, which is per se without jurisdiction and contrary to law. (8). He also referred the judgment passed by the Honble Supreme Court in the case of A.V. Venkateswaran, Collector of Customs, Bombay vs. Ramchand Sobhraj Wadhwani & Anr. reported in 1962 (1) SCR 753 , wherein the Honble Supreme Court observed as under:- ``The only point, therefore, requiring to be considered is whether the High Court should have rejected the writ petition of the respondent in limine because he had not exhausted all the statutory remedies open to him for having his grievance redressed. The contention of the learned Solicitor-General was that the existence of an alternative remedy was a bar to the entertainment of a petition u/Art. 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non est. In all other cases, he submitted, Courts should not entertain petitions u/Art. 226, or in any event not grant any relief to such petitioners. In the present case, he urged, the High Court in appeal had expressly dissented from the reasoning of the learned Single Judge as regards the lack of jurisdiction of the Customs Officers to adjudicate regarding the item under which the article imported fell and the duty leviable thereon, Nor was there any complaint in this case that the order had been passed without an opportunity to the importer to be heard, so as to be in violation of the principles of natural justice. The learned Solicitor-General questioned the correctness of the reasoning of the learned Chief Justice in condoning the conduct of the respondent in not moving the Government in revision by taking into account the time that had elapsed between the date of the impugned order and that on which the appeal was heard. The submission was that if this were a proper test, the rule as to a petitioner u/Art. 226 having to exhaust his remedies before he approached the Court would be practically a dead letter because in most cases by the date the petition comes on for hearing, the time for appealing or for applying in revision to the departmental authorities would have lapsed. We see considerable force in the argument of the learned Solicitor-General. We must, however, point out that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which Courts have laid down for the exercise of their discretion. (9). Thus, the Constitutional Bench of the Honble Supreme Court permitted to file the petition against any judgment, which is though appealable and alternative remedy is available under the statute. (10). The petitioner have prayed two main prayers, one with regard to quashing and setting aside the order dated 2.12.2004 passed by the Tehsildar, Jaipur and second with regard to proceedings in Reference Case No. 46/97 pending before the District Collector, Jaipur on the basis of Application dated 30.6.1997 may kindly be quashed and set aside. (11). (10). The petitioner have prayed two main prayers, one with regard to quashing and setting aside the order dated 2.12.2004 passed by the Tehsildar, Jaipur and second with regard to proceedings in Reference Case No. 46/97 pending before the District Collector, Jaipur on the basis of Application dated 30.6.1997 may kindly be quashed and set aside. (11). It is informed by learned counsel for the respondents that the Collector has decided the Reference Case No. 46/97 vide order dated 25.1.2005 and the matter is referred to Board of Revenue and the order dated 25.1.2005 was placed on record as Annexure R/5. (12). Therefore, so far as this prayer is concerned, the petitioner can approach to the Board of Revenue to protect his rights. This prayer becomes infructuous as the Reference Case No. 46/97 has been decided by the Collector vide order dated 25.1.2005. (13). Now, the question remains with regard to the order passed by the Tehsildar dated 2.12.2004. For the purpose this Court have to test the judgment passed by the Tehsildar whether it is without jurisdiction or not. (14). I carefully perused the observations made by the Constitutional Bench of the Honble Supreme Court. The Honble Supreme Court has time and again observed that the existence of alternative remedy was a bar to the entertainment of the petition u/Art. 226 of the Constitution unless there was a complete lack of jurisdiction in the officer or authority to take action impugned or where the order prejudicial to the writ petitioner has been passed in violation of the principle of natural justice and, therefore, be treated as void or non est. (15). Upon perusal of the order impugned dated 2.12.2004 passed by the Tehsildar it appears that the counsel for the petitioners were present at the time of passing of the order and they were heard at length. It is also not disputed that the Tehsildar is not having a jurisdiction to pass the order u/s. 183-B of the Tenancy Act. Therefore, there was no lack of jurisdiction. (16). Now the second test is with regard to whether the order passed by the Tehsildar dated 2.12.2004 is prejudicial to the writ petitioner or not. (17). It is also not disputed that the Tehsildar is not having a jurisdiction to pass the order u/s. 183-B of the Tenancy Act. Therefore, there was no lack of jurisdiction. (16). Now the second test is with regard to whether the order passed by the Tehsildar dated 2.12.2004 is prejudicial to the writ petitioner or not. (17). Since, the principle of natural justice has been followed by the Tehsildar and they were given opportunity of being heard, the writ jurisdiction is not available on the ground that the plea raised before the Tehsildar has not been properly considered by the Tehsildar. (18). For that purpose the petitioners have alternative efficacious remedy u/s. 225 of the Tenancy Act before the Collector and the petitioners can raise all sorts of objections and plea before the Collector assailing the order impugned dated 2.12.2004 passed by the Tehsildar. (19). Since, the petitioners under bona fide belief and purview of the Constitutional Bench judgment has filed this present petition, looking to this fact I deem it proper to give liberty to the petitioners to file appeal against the impugned order dated 2.12.2004 passed by the Tehsildar before the Collector within a period of 15 days. (20). Till then the parties are directed to maintain status quo. (21). The petitioners are also at liberty to move application for staying the operation of the impugned order of the Tehsildar before the Collector. (22). The Collector without prejudicing to the observations made herein above shall pass the appropriate order strictly in accordance with the provisions of law. (23). With these observations, the writ petition stands disposed of.