Allahabad High Court
Shiv Ram vs State Of U.P. & Others on 29 January, 2010
Author: Krishna Murari
Bench: Krishna Murari
'Reserved'
Civil Misc. Writ Petition No. 3849 of 2009
Shiv Ram
Versus
State of U. P. and others
AND
Civil Misc. Writ Petition No. 690 of 2009
Riyasat
Versus
State of U. P. and others
Hon'ble Krishna Murari, J.
These writ petitions arise out of proceedings under Section 122-B of the U. P. Zamindari Abolition & Land Reforms Act, hereinafter referred to as the 'Act'.
A preliminary objection with respect to the maintainability of the writ petition has been raised by learned Standing Counsel. It has been urged that since the petitioners have an alternative remedy of filing suit under Section 122-B (4-D) of the Act as such the petitions are liable to be dismissed on the ground of existence of effective and efficacious remedy of suit made available by the Statute. Reliance in support of the contention has been placed on the decision of Division Bench judgment of this Court in the case of Rajendra Singh Vs. State of U. P. and others [2008 (4) ADJ - 39 (DB)].
It appears that on account of conflict in the judgments of the two Hon'ble single Judges in the case of Sewak Shanker Vs. Additional Collector, Agra and others 1985 ALJ 746 and Shanker Saran and others Vs. State of U. P. and others 1987 AWC 755, the matter was placed before the Division Bench under the orders of Hon'ble The Chief Justice for resolving the same. The Hon'ble Division Bench framed the following question for consideration :
"Whether as per Section 122-B, sub-section (4-C), (4-D) and (4-E) of the U. P. Z. A. & L. R. Act, 1950, civil suit is the appropriate remedy to resolve the dispute ?"
Or "Whether writ petition could lie against any order under sub-section irrespective of availability of alternative and efficacious remedy of civil suit ?"
The Division Bench held that in view of alternative and efficacious 2 remedy of suit, writ jurisdiction of this Court cannot be invoked. It has been observed by the Division Bench in paragraph 19 as under :
"Therefore, according to us, having alternative and efficacious remedy of suit under Section 122-B of the Act of 1950, there is no scope for the aggrieved person to invoke the writ jurisdiction of the Court either from the order of the Assistant Collector or from the order of the Collector. It is clarified hereunder that a self corrective process to invoke the jurisdiction of the Assistant Collector, then by way of revision before the Collector and thereafter by filing suit before the Court, is the integral part of the Act which cannot be avoided. Thus, in our considered opinion, contentions of the writ petitioners, cannot be held to be sustainable, consequently, all the aforesaid writ petitions are dismissed without imposing any cost. Interim order, if any, stands vacated. However, aggrieved persons are at liberty to file civil suit for appropriate relief in accordance with law, if they are so advised.
The conflict between the two judgments of Hon'ble single Judges was resolved by the Division Bench by holding in paragraph 20 as under:
"So far as the conflicting judgments of learned single Judge in Sewak Shankar (supra) and in Shankar Saran (supra) are concerned, we find that the earlier says if revision is filed, suit cannot be filed, when the later says that the remedy of revision before the Collector would not deprive the remedy of suit, with a recommendation to the Legislature to make the necessary amendments. In our view, amendment or no amendment, the law is very clear from its plain reading. In case a revision from an order of Assistant Collector is filed before the Collector, it will not stand in the way of an aggrieved of a revisional order to file a suit before the Court incidentally later view is more acceptable. Hence, the conflict stands resolved by the view taken and interpretation of the Act given by us as above keeping in mind the intention of the Legislature".3
From a plain reading of the questions framed for determination and observations made in paragraph 19 (quoted above), the ratio decidendi appears to be due to remedy of suit prescribed by the Statute, a writ petition challenging the orders passed in the proceedings under Section 122-B of the Act would not be maintainable or in other words would be barred on the ground of existence of an efficacious alternative remedy. The use of words "Therefore, according to us, having alternative and efficacious remedy of suit under Section 122-B of the Act of 1950, there is no scope for the aggrieved person to invoke the writ jurisdiction of the Court either from the order of the Assistant Collector or from the order of the Collector"
by the Hon'ble Division Bench is clearly indicative of the same. The fact that all the writ petitions were dismissed by one stroke of pen without considering the facts and merits of each case with liberty to the aggrieved person to file suit for appropriate relief is further indicative of the same.
Thus, in view of the law as laid down by the Hon'ble Division Bench, the petitions challenging the orders passed in proceedings under Section 122-B are to be dismissed as not maintainable on account of existence of alternative remedy and the petitioners of such writ petitions are to be relegated back to avail the alternative remedy of civil suit provided by the Statute.
I have heard Sri K. R. Sirohi, learned Senior Advocate, Sri Suresh Chandra Verma, Sri A. K. Srivastava and Sri Anil Kumar Aditya for the petitioners in various writ petitions raising arguments challenging the correctness of the law laid down by Division Bench.
The main thrust of the contentions of the learned counsel for the petitioners is that existence of alternative remedy is not an absolute bar and the Division Bench is not right in holding that every writ petition challenging the proceedings under Section 122-B of the Act would not be maintainable because of remedy by way of suit has been provided by the Statute. It has further been urged that in every case arising out of proceedings under Section 122-B of the Act, suit cannot be an effective and efficacious remedy and the same would depend upon the facts of each case and a conclusion can be arrived at only after assessment of the facts. A number of decisions have also been cited at the Bar in support of the contentions. However, before proceeding to analyse the argument raised 4 by the learned counsel for the parties, it may be relevant to quote section 122-B of the Act which reads as under :
"122-B. Powers of the Land Management Committee and the Collector.- [(1) Where any property vested under the provisions of this Act in a Gaon Sabha or a local authority is damages or misappropriated or where any Gaon Sabha or local authority is entitled to take or retain possession of any land under the provisions of this Act and such land is occupied otherwise than in accordance with the provisions of this Act, the Land Management Committee or Local Authority, as the case may be, shall inform the Assistant Collector concerned in the manner prescribed. (2) Where from the information received under sub-section (1) or otherwise, the Assistant Collector is satisfied that any property referred to in sub-section (1) has been damaged or misappropriated or any person is in occupation of any land, referred to in that sub-
section, in contravention of the provisions of this Act, he shall issue notice to the person concerned to show cause why compensation for damage, misappropriation or wrongful occupation as mentioned in such notice be not recovered from him or, as the case may be, why he should not be evicted from such land.
(3) If the person to whom a notice has been issued under sub-section (2) fails to show cause within the time specified in the notice or within such extended time not exceeding three months from the date of service of such notice on such person, as the Assistant Collector may allow in this behalf, or if the cause shown is found to be insufficient, the Assistant Collector may direct that such person may be evicted from the land and may for that purpose, use, or cause to be used such force as may be necessary and may direct that the amount of compensation for damage, misappropriation or wrongful occupation be recovered from such person as arrears of land revenue.
(4) If the Assistant Collector is of opinion that the person showing cause is not guilty of causing the damage or misappropriation or wrongful occupation referred to in the notice under sub-section (2) he shall discharge the notice.
5(4-A). Any person aggrieved by the order of the Assistant Collector under sub-section (3) or sub-section (4) may, within thirty days from the date of such order prefer, a revision before the Collector on the grounds mentioned in clauses (a) to (e) of Section 333. (4-B). The procedure to be followed in any action taken under this section shall be such as may be prescribed.
(4-C). Notwithstanding anything contained in Section 333 or Section 333-A, but subject to the provisions of this Section-
(i) every order of the Assistant Collector under this section shall, subject to the provisions of sub-sections (4-A) and (4-D), be final.
(ii) every order of the Collector under this Section shall, subject to the provisions of sub-section (4-D), be final.
(4-D). Any person aggrieved by the order of the Assistant Collector or Collector in respect of any property under this section may file a suit in a court of competent jurisdiction to establish the right claimed by him in such property.
(4-E). No such suit as is referred to in sub-section (4-D) shall lie against an order of the Assistant Collector if a revision is preferred to the Collector under sub-section (4-A).
Explanation.- For the purposes of this section, the expression 'Collector' means the officer appointed as Collector under the provisions of the U. P. Land Revenue Act, 1901 and includes an Additional Collector].
(4-F). Notwithstanding anything in the foregoing sub-sections, where any agricultural labourer belonging to a Scheduled Caste or Scheduled Tribe is in occupation of any land vested in a Gaon Sabha under Section 117 ( not being land mentioned in Section 132) having occupied it from before June 30, 1985 and the land so occupied together with land, if any, held by him from before the said date as Bhumidhar, sirdar or asami, does not exceed 1.26 hectares (3.125 acres), then no action under this section shall be taken by the Land Management Committee or the Collector against such labourer, and it shall be deemed that he has been admitted as bhumidhar with non-transferable rights of that land under section 195.]".
The section has undergone Sea change ever since its inception vide U.P. 6 Act No. XXVIII of 1961. However, the purpose of enacting the section is to provide speedy and efficacious remedy for ejectment of unauthorized occupants from the land vested in Gaon Sabha or local authority in summary manner.
A plan reading of sub-section (4-D) goes to show that any person aggrieved by the order of Assistant Collector or Collector can file a suit in a court of competent jurisdiction to establish the right claimed by him in the disputed property.
Although the legislature has used the words "suit in a court of competent jurisdiction" but it is note worthy that Division Bench while framing the questions has used the word "Civil Suit" and again while dismissing the writ petitions on the ground of alternative remedy gave liberty to the petitioners of those petitions to file civil suit for appropriate relief. Civil suit in common para-lance means a suit filed under section 9 CPC before the Civil Court. Under section 331 of the Act, jurisdiction of Civil Court stands barred in respect of a suit, application or proceedings based on a cause of action in respect of which relief could be granted by revenue courts. Relevant part of Section 331 of the Act reads as under :
"331. Cognizance of suits, etc. under this Act.- (1) Except as provided by or under this Act no court other than a court mentioned in Column 4 of Schedule II shall, notwithstanding anything contained in the Civil Procedure Code, 1908 (V of 1908), take cognizance of any suit, application, or proceedings mentioned in Column 3 thereof or of a suit, application or proceedings based on a cause of action in respect of which any relief could be obtained by means of any such suit or application.
Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II in so far as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.
Explanation.- If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil court may not be 7 identical to that which the revenue court would have granted."
Thus, in cases where a litigant decides to avail the remedy of suit provided by section 122-B (4-D) of the Act to establish his claim or title over the land covered by the provisions of the Act has necessarily to approach the revenue court. Suit for declaration in respect of the land covered by the provisions of the Act is to be filed under Section 229-B of the Act and would be cognizable by the Assistant Collector first class under column 4 of Schedule II of the Act and the suit under Section 9 C.P. C. or in other words a civil suit would be barred while the Division Bench has held that a civil suit would be effective and efficacious alternative remedy. It is only in cases where there is a dispute in respect of an 'abadi', civil suit can be filed and for this reason the legislature has used the words "Suit in a court of competent jurisdiction".
Even if the words "Civil suit" referred to by Division Bench in the judgment is to be read as a suit before the court of competent jurisdiction, as used by the legislature, the question which immediately arises for consideration is whether under all given circumstances and all cases, suit can be said to be an efficacious alternative remedy so as to bar the jurisdiction conferred upon this Court by Article 226 of the Constitution and this Court is obliged to dismiss the writ petition irrespective of the facts of the case, which may be warranting interference, and relegate the litigant to avail the remedy of suit provided by the legislation. In other words since the remedy by way of suit has been provided in the Statute, this Court should decline to interfere in every case where the challenge to is made to the orders passed in proceedings under section 122-B of the Act without any exception, without examining the facts simply on the ground that remedy by way of suit is available.
The question whether petition can be entertained by this Court in exercise of powers conferred by Article 226 of the Constitution even though a remedy by way of suit is available came up for consideration before the Full Bench in the case of Buddhu Vs. Municipal Board AIR 1952 Allahabad- 753. The facts were that a writ petition under Article 226 of the Constitution of India was filed seeking a mandamus to restrain the Municipal Board from enforcing its bye-laws. Even through there was 8 conflict in the opinion and the majority view was expressed by Hon'ble Bind Basni Prasad, J. and the minority view was expressed by Hon'ble Raghubar Dayal, J. but both over-ruled the preliminary objection with respect to the maintainability of the writ petition. The majority view on the issue was as under :
" I am not prepared to go to the extent of laying down as an inflexible rule that in every case in which a fundamental right is involved, a decision should be given by the court on merits on an application under Article 226. There may be cases in which the existence of an alternative remedy may be a ground for the rejection of the application. The circumstances of each case should be considered and then a decision should be taken whether or not the discretion should be exercised."
Hon'ble Raghubar Dayal, J. made the following observations:
"The issue of the various writs or directions is in the discretion of the Court. It is not much use to lay it down in the form of any formula that the discretion is to be exercised in such and such a circumstance only."
In the case of Satyapal Singh Chauan Vs. Chairman-cum-Chief Executive Officer, New Okhla Industrial Development Authority, NOIDA Complex, Ghaziabad 1984 UPLBEC 587, a Division Bench of this Court while considering the issue has observed as under :
"It is true that an alternative remedy does not operate as a complete bar to the exercise of writ jurisdiction. The Court acts in its discretion taking into consideration the facts and circumstances of the case".
The Hon'ble Apex Court in the case of M/s Shiv Shanker Dal Mills etc. Vs. State of Haryana and others 1980 SC 1037 while analysing the scope and ambit and powers conferred upon the High Courts by Article 226 of the Constitution has held as under :
"Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. It is perfectly open for the court, exercising this flexible power, to pass such order as public interest dictates and equity projects................................ Nor is it palatable to our 9 jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of "alternative remedy", since the root principle of law married to justice, is ubi jus ibi remedium."
Again in the case of Dr. (Smt.) Kuntesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur and others AIR 1987 SC 2186 while considering an appeal against the order of High Court dismissing the writ petition on the ground of existence of an alternative remedy provided by Section 68 of the State Universities Act, the Hon'ble Apex Court held as under :
"Further, it is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition. When an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Article 226 of the Constitution on the ground of existence of an alternative remedy."
In the case of Whirlpool Corporation Versus Registrar of Trade Marks, Mumbai and others (1998) 8 SCC - 1, the Hon'ble Apex Court in paragraph 15 of the judgment has observed as under :
"Under Article 226 of the Constitution, the High Court, having regards to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged."
After considering its earlier judgment in the case of Rashid Ahmed Vs. Municipal Board, Kairana AIR 1950 SC 163, State of U. P. Vs. Mohd. Nooh AIR 1958 SC 86 and the Constitution Bench judgment in 10 the case of A. V. Venkateswaran, Collector of Customs Vs. Ramchand Sobhraj Wadhwani AIR 1961 SC 1506 and Calcutta Discount Co. Ltd. Vs. ITO, Companies AIR 1961 SC 372, the Hon'ble Judges have observed in paragraph 20 of the judgment as under :
"Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the high Court in entertaining a writ petition under Article 226 of the Constitution, inspite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation".
The view that alternative remedy is rule of discretion and not rule of law has again been reiterated by the Hon'ble Supreme Court in a recent decision rendered in the case of Committee of Management Vs. Vice Chancellor and others 2009 (1) SC AWC 437 and Balco Captive Power Plant Mazdoor Sangh and another Versus National Thermal Power Corporation and others, 2007 (14) SCC page 234:
From the aforesaid binding precedents, it is well settled that existence of alternative remedy does not bar the jurisdiction of the High Court to entertain, in appropriate cases, a petition for issue for high prerogative writs. The result of the authorities and precedents on the question can be summarised as under :
(i) High prerogative writs are normally not issued where there exists an alternative remedy equally efficient and adequate.
(ii) There is no inflexible rule that in cases where there is an alternative remedy such writs cannot be issued even where the court finds it just and convenient to do so.
(iii)Whether the alternative remedy is equally effective and efficacious is a question of fact to be considered and decided on the basis of facts of individual case.
(iv)Where the action done or purported to be one under any statutory provision is under challenge, the fact that there exists in the statute itself a remedy is an important factor for consideration.11
(v) However existence of a remedy under the statute does not take away the jurisdiction of the courts to issue writs in appropriate cases.
No doubt, there are cases, where the court has refused to entertain a writ petition on the ground of existence of alternative remedy where such remedy is efficacious and effective and facts so justify, but the principle cannot be applied as a general rule having universal application.
Now comes the question whether a suit can be said to be an effective, efficacious and adequate alternative remedy in all cases under Section 122- B of the Act. It is a matter of common knowledge and judicial notice can be taken of the fact that suit involves a cumbersome and lengthy process and thus may not be a efficacious and alternative remedy in all cases. For example, in a case where a defence set up in response to the notice issued for initiating proceedings under Section 122-B of the Act is that there is no encroachment and Gaon Sabha land alleged to have been encroached is contiguous to the bhumidhari land of the petitioner and the order of ejectment is passed without making any survey and measurement, and the mistake is not rectified even at the revisional stage, in such a situation the suit which involves a lengthy and cumbersome process cannot be said to be an effective and efficacious remedy as the mistake can be corrected by issuing a writ of certiorari quashing such orders with a direction to the authorities to undertake survey and measurement and thereafter pass order accordingly.
Similarly, in a case where defence is that petitioner is allottee of Gaon Sabha land either for the purposes of agricultural or Abadi sites and produces evidence to that effect before the authorities but the orders are passed ignoring and even without referring to the evidence. In such situation orders would be without jurisdiction in as much an allottee cannot be ejected in proceedings under section 122-B of the Act and the same can be rectified by the High Court by issuing a writ of certiorari. Another example can be where orders have been passed without service of notice or without recording any reasons, thus being in violation of principle of natural justice.
The examples quoted above are not exhaustive and there can be many such situation where a suit may not be an effective, efficacious and 12 adequate remedy. It is to be taken note of that in view of Section 229-D (2) powers to grant injunction vested in revenue courts is not available in respect of suits filed under Section 122-B (4-D). The effect would be that in the absence of any power in the revenue court to grant injunction in cases where suit is filed by a litigant to establish the right claimed by him in the property involved in the proceedings under Section 122-B of the Act, the order of ejectment passed in said proceedings shall be carried out and damages, if any imposed, shall also be realised , only to be put back in possession and refund of amount of damages realized after he succeeds in suit. Thus, in situations described above and other like situation suit cannot be said to be an efficacious remedy. A Division Bench of this Court in the case of K. H. Panjani Vs. State of U. P. and another AIR 1959 Allahabad - 26 finding that in case of challenge to municipal election though a remedy by way of suit was available but being not adequate and efficacious, it was held that writ petition would be maintainable and was not liable to be dismissed on the ground of availability of alternative remedy by way of suit. It may be relevant to quote paragraph 13 of the judgment :
"Finally, the learned Judge was of opinion that the appellant had an alternative remedy by way of a civil suit. Now this Court is very reluctant to interfere with the exercise by a learned Judge of his discretion under Article 226 of the Constitution. We think, however, that we cannot overlook the fact that this Court has in the last few years entertained a large number of writ petitions in which the validity of proceedings connected with the election of members of municipal boards has been challenged, on the ground that the alternative remedy by way of a suit is not a remedy equally convenient, beneficial and effective. .................................. We are satisfied that in view of the present congested state of the lists in the Civil Courts, that object would not be achieved had the appellant been compelled to pursue his alternative remedy. We think therefore that that remedy, although it exists, is not an adequate remedy and that the appellant is entitled to seek relief in this Court by way of a writ petition."13
Similarly in the case of Smt. Shanti Devi Vs. State of U. P. 1978 AWC 189 wherein the petitioner came to know about proceedings for recovery against him only after he was dispossessed and by that time remedy available to him under Zamindari Abolition & Land Reforms Rules was lost, a Division Bench of this Court held that alternative remedy by way of suit is not an efficacious and adequate remedy.
Situation may be different in cases where the petitioner does not have even a prima facie case to demonstrate any right over the land alleged to have been encroached or adjudication of title involving the disputed question of facts requiring evidence to be led is involved which obviously cannot be done under Article 226, the litigant may be relegated to avail alternative remedy of suit provided by Statute. However, without making assessment of the facts to arrive at a conclusion whether the petition is liable to be entertained or is to be thrown out on the ground of existence of alternative remedy of suit would not only be a travesty of justice but may also amount to putting an embargo on the power of the High Court converting the alternative remedy which is rule of discretion into rule of law. In view of the aforesaid discussions, I have been unable to agree with the opinion of the learned Judges constituting the Division Bench in the case of Rajendra Singh (supra) and the same is directly contrary to the decision rendered in the case of K. H. Panjani (supra), Smt. Shanti Devi (supra) and Satyapal Singh Chauan (supra) rendered by Benches of coordinate jurisdiction holding that alternative remedy is a rule of discretion rather than rule of law and writ petition is not liable to be thrown out on the ground of existence of alternative remedy if the same is not efficacious and adequate.
The thrust of the argument of the learned counsel for the petitioner has been to hold the judgment rendered in the case of Rajendra Singh (supra) as per incurium in view of the Full Bench decision of this Court in the case of Buddhu Vs. Municipal Board (supra) as well as another Full Bench judgment in the case of Bijli Cotton Mills (Pvt.) Ltd. Hathras and others Vs. Estate Officer/Secretary, National Textile Corporation (U. P. ) Ltd and another 1977 AWC 191. Though, the Full Bench in the case of Buddhu Vs. Municipal Board (supra) has not been taken into consideration by the Division Bench but the case of Bijli Cotton 14 Mills (Pvt.) Ltd. Hathras (supra) has been considered and distinguished by the Division Bench on the ground that the section in its present form was introduced in the Statute Book on 3rd of June, 1981 vide Act No. XX of 1982. In the case of Bijli Cotton Mills (Pvt.) Ltd. Hathras (supra), Full Bench of this Court held that an application under Article 226 will not be barred in a case where remedy by way of a suit under Section 9 of the Code of Civil Procedure or any other remedy is not effective and adequate to redress the injury complained of.
I have again been unable to persuade myself to agree to the reasons distinguishing the Full Bench on the ground that the same will not apply, being earlier in point of time and the provisions having been enforced subsequently. The question framed by the Division Bench was whether writ petition could lie irrespective of availability of alternative and efficacious remedy of civil suit and without returning any finding with regard to remedy of civil suit being effective and efficacious or not the petitions were dismissed holding that since there exists alternative remedy, there is no scope for the aggrieved person to invoke the writ jurisdiction of the Court.
In my humble opinion, any point in issue arising in a case which is covered by the decision of Full Bench its binding effect is not lost on the ground that the provisions were brought on the Statute Book subsequent to the decision by way of amendment. Sitting singly, I can only express my disagreement, supported by reasons, with the view expressed by a Division Bench and cannot hold the reasons given by Division Bench to distinguish the earlier Full Bench to be wrong. The Division Bench took note of later Full Bench and distinguished it. It would not again be proper for me sitting singly to hold the judgment of the Division Bench as per incurium for want of consideration of the earlier Full Bench on identical point.
The Hon'ble Apex Court in the case of Furest Day Lawson Ltd. Vs. Jindal Exports Ltd. (2001) 6 SCC 356 has observed that unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment "per incuriam".
The Hon'ble Apex Court in the case of Vijay Laxmi Sadho (Dr.) Vs. Jagdish (2001) 2 SCC 247 has held as under :
"It is well settled that if a Bench of coordinate jurisdiction disagrees with another Bench of coordinate jurisdiction 15 whether on the basis of "different arguments" or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs.
From the discussions made herein above, in my considered opinion, the decision rendered in the case of Rajendra Singh (supra) is in direct conflict with the earlier Division Bench judgment of this Court in the case of K. H. Panjani Vs. State of U. P. and others (supra), Smt. Shanti Devi Vs. State of U. P. (supra) and Satyapal Singh Chauan (supra). The Division Bench judgment in the case of Rajendra Singh (supra) also requires re-consideration by a larger Bench in view of judgments of this Court as well as Hon'ble Apex Court that alternative remedy is not an absolute bar.
Thus, the following questions are being referred to be answered by a larger Bench:
1. Whether the Division Bench in the case of Rajendra Singh (supra) is correct in holding that writ petition challenging the orders passed in proceedings under Section 122-B of the U. P. Zamindari Abolition & Land Reforms Act would not be maintainable in view of alternative remedy of suit provided by the Statute itself against the orders passed by the Assistant Collector or the Collector in the said proceedings.
2. Whether the view expressed by the Division Bench in the case of Rajendra Singh (supra) that since a remedy by way of suit has been provided in sub section (4) (D) of Section 122-B, the writ petition challenging the order passed in proceedings under Section 122-B would be barred by principles of existence of alternative remedy requires reconsideration in view of Division Benches of co-ordinate jurisdiction in the case of K.H. Panjani Vs. State of U.P. (supra), Smt. Shanti Devi Vs. State of U.P. (supra) 16 and Satyapal Singh Chauhan (supra) as well as Full Bench decisions in the case of Buddha Vs. Municipal Board (supra) and Bijli Cotton Mills Pvt. Ltd., Hathras Vs. Estate Officer/Secretary, National Textile Corporation, U.P. & Ors. (supra).
3. Whether the Division Bench judgment in the case of Rajendra Singh (supra) holding that 'civil suit' is the appropriate remedy to resolve every dispute under Section 122-B of U.P.Z.A. & L.R. Act, lays down the correct law, even though the legislature has used the words "suit in a court of competent jurisdiction in sub section '4-D', and Section 331 of the U.P.Z.A. & L.R. Act specifically bars the jurisdiction of civil court, in respect of any suit, application or proceedings based on a cause of action in respect of which relief could be granted by Revenue courts.
Let the papers be placed before the Hon'ble The Chief Justice to consider constituting a larger Bench to resolve the conflict in the decisions of Benches of co-ordinate jurisdiction and for consideration of the above noted questions.
Interim order passed earlier shall continue to operate until further orders.
January 29, 2010 Dcs.