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2024 DIGILAW 497 (ALL)

Vijay Kumar v. Chief Revenue Officer, Gonda

2024-02-15

JASPREET SINGH

body2024
JUDGMENT Jaspreet Singh, J. Heard Shri. Rajeiu Tripathi, learned counsel for the petitioners and the learned standing counsel for the State-respondents. Shri. Pankaj Gupta, learned counsel for the respondent No.3, Shri. Nitin Srivastava, learned counsel for the private-respondents No.4 to 6 and Shri. Alok Kumar Mishra, learned counsel for the private-respondent No.20. 2. Under challenge is the order dated 01.12.2023 passed by the Chief Revenue Officer, Gonda in proceedings initiated under Section 66 of the U.P. Revenue Code, 2006 (for short, 'the Code of 2006'). 3. At the outset, a preliminary objection regarding the maintainability of the petition was raised by the learned counsel for the private-respondents as well as the learned standing counsel and it is urged that in view of Section 66(3) of the Code of 2006, the petitioners have an adequate and effective remedy of filing a revision before the revisional authority, hence, the instant petition is not maintainable. 4. Shri. Tripahti, learned counsel for the petitioners has submitted that the order impugned is wholly without jurisdiction inasmuch as by means of the impugned order the lease granted in favour of the petitioners was rejected and that too in violation of sub-section (2) of Section 66 of the Code of 2006. 5. It is urged that Section 66(2) of the Code of 2006 proscribes that an application seeking enquiry into irregular allotment of abadi sites shall not be entertained if it is made after expiration of three years from the date of allotment. 6. It is urged that admittedly the lease granted in favour of the petitioners is dated 24.02.1992. It is also urged that even earlier an attempt was made to get the lease of the petitioners cancelled which did not find favour. The parties were also engaged in a civil suit whereby the private-respondents could not succeed. Again in order to harass the petitioners, a complaint was made by the predecessor-in-interest of the private-respondents namely Mohan Lal. Thus, it is urged that where the proceedings are per se without jurisdiction. Accordingly, the bar of alternate remedy is not an absolute bar and it does not create a bar of exercise of jurisdiction for the Constitutional Courts under Articles 226/227 of the Constitution of India to consider the matter, hence, the petition deserves to be admitted. 7. Thus, it is urged that where the proceedings are per se without jurisdiction. Accordingly, the bar of alternate remedy is not an absolute bar and it does not create a bar of exercise of jurisdiction for the Constitutional Courts under Articles 226/227 of the Constitution of India to consider the matter, hence, the petition deserves to be admitted. 7. Shri. Tripathi, learned counsel for the petitioners further submits that from the perusal of sub-section (3) of Section 66 of the Code of 2006, it would reveal that it is the order of the Collector made under this section which shall subject to provisions of Section 210 of the Code of 2006 be final. 8. The contention is that every order as referred to in sub-section (3) of Section 66 of the Code of 2006 would mean the final order passed by the Collector either allowing the application or rejecting it. However, in the instant case, the order passed by the Collector is an interlocutory in the sense that the Collector has found the proceedings to be maintainable by ignoring the delay as well as the embargo contained in sub-section (2) of Section 66 of the Code of 200. It is thus urged that it is a fit case for consideration and the petitioners may not be relegated to the alternate forum. 9. Learned counsel for the petitioners has relied upon the decision of the Apex Court in Uttar Pradesh Power Transmission Corporation Limited and another v. CG Power and Industrial Solutions Limited and another, (2021) 6 SCC 15 to buttress his submissions that the availability of alternate remedy does not prohibit the High Court in entertaining the petition in appropriate case. 10. The Court has heard learned counsel for the parties on the limited issue regarding the maintainability of the petition. 11. It is no doubt true that no fetter can be cast on the Constitutional Courts for exercise of its powers under Articles 226/227 of the Constitution of India. The availability of alternate remedy is not an absolute bar rather it is part of a self-imposed judicial discipline which over a period of years has matured in a rule, that, normally the Constitutional Courts do not intervene where a party has an adequate remedy in terms of the Act itself from which the proceedings emerge. 12. The availability of alternate remedy is not an absolute bar rather it is part of a self-imposed judicial discipline which over a period of years has matured in a rule, that, normally the Constitutional Courts do not intervene where a party has an adequate remedy in terms of the Act itself from which the proceedings emerge. 12. It will be relevant to notice the decision of the Apex Court in Radha Krishan Industries v. State of H.P. and others, (2021) 6 SCC 771 and the relevant paras where the Apex Court has succinctly laid down the guidelines are being reproduced hereinafter for ready reference. "27. The principles of law which emerge are that: 27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. 27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person. 27.3. Exceptions to the rule of alternate remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged. 27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law. 27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion. 27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with. 28. 27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with. 28. These principles have been consistently upheld by this Court in Chand Ratan v. Durga Prasad [Chand Ratan v. Durga Prasad, (2003) 5 SCC 399 ], Babubhai Muljibhai Patel v. Nandlal Khodidas Barot [Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706 ] and Rajasthan SEB v. Union of India [Rajasthan SEB v. Union of India, (2008) 5 SCC 632 ] among other decisions." 13. Having taken note of the aforesaid principles which have been summarized by the Apex Court, it is clear that the proceedings arise out of the Code of 2006 which also provides a remedy of filing a revision in terms of sub-section (3) of Section 66 which came to be inserted by the U.P. Amending Act No.7 of 2019 and has come into operation w.e.f. 10.03.2019. 14. Section 210 of the Code of 2006 provides for a revision and it reads as under:- "210. Power to call for the records.-(1) The Board or the Commissioner may call for the record of any suit or proceeding decided by any subordinate revenue Court in which no appeal lies, or where an appeal lies but has not been preferred, for the purpose of satisfying itself or himself as to the legality or propriety of any order passed in such suit or proceeding; and if such subordinate Court appeals to have - (a) exercised a jurisdiction not vested in it by law; or (b) failed to exercise a jurisdiction so vested; or (c) acted in the exercise of such jurisdiction illegally or with material irregularity, the Board, or the Commissioner, as the case may be, may pass such order in the case as it or he thinks fit. (2) If an application under this section has been moved by any person either to the Board or to the Commissioner, no further application by the same person shall be entertained by the other of them. (2) If an application under this section has been moved by any person either to the Board or to the Commissioner, no further application by the same person shall be entertained by the other of them. [Explanation.-For the removal of doubt it is, hereby, declared that when an application under this section has been moved either to the Board or to the Commissioner, the application shall not be permitted to be withdrawn for the purpose of filing the application against the same order to the other of them.] (3) No application under this section shall be entertained after the expiry of a period of third days from the date of the order sought to be revised or from the date of commencement of this Code, whichever is later." 15. From the perusal of Section 210 of the Code of 2006, it would be clear that the Board or the Commissioner in exercise of powers under Section 210 can call for the record of any suit or proceedings decided by any subordinate Revenue Courts, in which no appeal lies, for the purpose of satisfying itself as to the legality or the propriety of any order passed in such suits or proceeding and if such subordinate Court appears to have exercised the jurisdiction not vested in it by law; or failed to exercise jurisdiction so vested; or acted in the exercise of such jurisdiction illegally or with material irregularity, it can intervene. 16. From a bare perusal would indicate that the terminology used in Section 210 is quite board and expensive inasmuch as it encompasses any order passed in any suit or proceeding by any subordinate Revenue Court where no appeal lies. 17. In the instant case, it is clear that an order in exercise of powers under Section 66 of the Code, 2006 has not been made appealable rather the amendment made in the year 2019 clearly provides for remedy of revision. 18. The submission of the learned counsel for the petitioners is that the usage of the word 'every order' in Section 66(3) of the Code, 2006 would only be in respect of a final order is also not acceptable for the reason that the Legislature has used the word 'every order'. 18. The submission of the learned counsel for the petitioners is that the usage of the word 'every order' in Section 66(3) of the Code, 2006 would only be in respect of a final order is also not acceptable for the reason that the Legislature has used the word 'every order'. Thus, in exercise of powers under Section 210 the revisional Court has been confirmed with the powers to look into the legality and propriety of 'any order' and this would include any order even in context with Section 66(3) which is passed in exercise of powers under Section 66 and if can be shown that an order is without jurisdiction or suffers from jurisdictional error then it can be corrected in the jurisdictional jurisdiction of the Court. 19. In view of the aforesaid, this Court finds that the petitioners have adequate, effective and alternate statutory remedy as provided under Section 66(3) read with Section 210 of the Code, 2006, hence, this Court is not inclined to entertain the petition at this stage. 20. In view of the aforesaid, the petition is dismissed leaving it open for the petitioners to assail the impugned order by filing a revision. In case any such revision is filed along with an application seeking condonation of delay, the same shall be considered appropriately and decide the same on its own merits in accordance with law. 21. It is made clear that the Court has not examined the case of either of the parties on merit and it is only on the ground of availability of statutory remedy that the petition has been dismissed. Costs are made easy.