Patna High Court
Jogesh Pandey vs Bhuneshwar Pandey And Ors. on 7 December, 1951
Equivalent citations: AIR1953PAT103, AIR 1953 PATNA 103
JUDGMENT Das J. 1. These are two applications, both of which are directed against an order of the learned District Magistrate of Gaya, dated 12-6-1950, by which the learned District Magistrate has referred a particular dispute to a Board under Section 3, Bihar Bakasht Disputes Settlement Act, 1947. The case of the petitioner is that he is the occupancy 'raiyat' in respect of 7.50 acres of lands comprised in 'khata' No. 68 of village Fata, police station Kutumba in the district of Gaya under the proprietary interest of opposite party 2 and 3. The petitioner based his claim on the strength of two documents of lease executed in 1946 and 1947. It was alleged that the lands were sold in execution of decrees for arrears of rent, and were purchased by the landlords who made the settlement in favour of the petitioner. One Bhuneshwar Pandey' son of Dcoki Pandey, filed an application to the Sub-divisional Magistrate of Aurangabad for the reference of a dispute between him and the landlords regarding the same piece of land, purporting to be an application under Section 3. Bihar Bakasht Disputes Settlement Act 1947. The application was filed on 27-12-1948. The landlords alone were made parties to the application. The landlords appeared before the Sub-divisional Magistrate, & said that they were not in possession of the land which had been settled with the petitioner. The learned Sub-divisional Magistrate expressed a doubt as to whether the Bihar Bakasht Disputes Settlement Act, 1947 applied and made a reference to the District Magistrate of Gaya. The learned District Magistrate heard the parties, and on 12-6-1950, made an order directing that the dispute be referred to the Board for settlement. I may state that the present petitioner, though not a party to the original application made before the Sub-divisional Magistrate of Aurangabad, filed a protest petition to the District Magistrate. 2. Originally, an application was filed to this Court for interference with the order of the learned District Magistrate under Sections 435 and 439, Criminal P. C. In the cause title of the application, Sections 435 and 439, Criminal P. C., and Articles 226 and 227 of the Constitution of India were mentioned. This application was heard by a Division Bench on 8-5-1951, and it was pointed out that the functions of this Court under the provisions. of the Code of Criminal Procedure were entirely different from its functions under Articles 226 and 227 of the Constitution of India. It was observed that it was undesirable that an application which, 'ex facie', purported to be one under the Code of Criminal Procedure should be regarded as one under Articles 226 and 227 of the Constitution of India, Learned Counsel for the petitioner then asked for & obtained an adjornment for the purpose of filing a separate application under Articles 226 & 227 of the Constitution of India. A separate application was then filed on 16-6-1951, and both. the applications have now come before us for hearing. 3. Both these applications can, in my opinion, be disposed of on a very short point. It has been conceded by learned counsel for the petitioner that the jurisdiction of this Court under the provisions of Sections 435 and 439 Criminal P. C., is not attracted by the order of the learned District Magistrate, because the learned District Magistrate was not an inferior criminal Court within the meaning of those sections when he acted under Section 3, Bihar Bakasht Disputes Settlement Act, 1947. This point has been settled by several decisions of this Court. I need only refer to one of them, namely,-- 'Bhagwat Singh v. Bhola Singh', Cri. Rev No. 712 of 1948 D/- 14-12-1948 (Pat.) 4. The next question is if the petitioner can ask for a writ to quash the order of the District Magistrate or the proceeding before the Board under Article 226 of the Constitution of India. It has been laid down in more than one decision of this Court that the remedy provided by Article 226 of the Constitution of India, in respect of rights other than fundamental rights, is an extraordinary remedy, and is not intended to supersede I the ordinary procedure under which a person aggrieved can obtain relief by means of a suit in a civil Court. In a Pull Bench decision of this Court in --'Bagaram v. State of Bihar', 29 Pat 491 (PB), the following observations were made by Meredith C. J.: "Moreover, it could never have been intended that resort could be had to this extraordinary procedure where an adequate remedy is available by ordinary legal process, for example, by suit. Otherwise the ordinary legal procedure, including the payment of court-fees, would be abrogated. An application under Art 226, in my judgment, is and must remain an extraordinary remedy to be used where ordinary legal process cannot give adequate and prompt relief." 5. The same view was again expressed in --'Bukhtiarpore Bihar Light Rly. v. District Board Patna', 30 Pat 287, where the following observations of Wills, J. in '--Queen v. Registrar of Joint-Stock Cos', (1888) 21 QBD 131 at 136 were quoted with approval: "It is a well established rule of practice, as to which there can be no doubt, that a mandamus ought not to be granted where there is another appropriate remedy. I do not wish to put it so high as to say that the other remedy must be as convenient, for I think that if "no reasonable objection can be taken' to the alternative-remedy a mandamus ought not to be granted". 6. It is not seriously disputed by Mr. Lakshmi Narain Sinha, who has appeared for the petitioner, that the petitioner has an alternative remedy. It is stated before us that the petitioner is still in. possession of the land. It further appears that the petitioner was not a party to the proceeding or the dispute which has been referred to the Bakasht Board, though the petitioner did file a protest petition to the District Magistrate. It is open to the petitioner to ignore the decision of the Bakasht Board, and if any cloud is thrown on the petitioner's title or possession, he can go to the ordinary civil Court and ask for the issue of a temporary injunction, if there be any neces-. sity for restraining any party from interfering with the rightful possession of the petitioner. In these circumstances, it is difficult to see why it is necessary for the petitioner to move for the issue of a writ under Article 226 of the Constitution of India. If the power given under Article 226 of Constitution of India in respect of matters which do not involve violation of a fundamental right, is to be used in such a way as to abrogate the ordinary law, then the very purpose of the extraordinary remedy provided by Article 226 of the Constitution of India will be defeated. 7. In the view which we have taken of these two petitions it is unnecessary to consider or to give a decision on the question whether the order of the learned District Magistrate was with or without jurisdiction. All that is necessary for us to state is that the petitioner has an appropriate remedy, if and when the necessity arises, by resort to the ordinary procedure of a suit in the civil Court; therefore, it is not a fit case in which any writ should issue under Article 226 of the Constitution of India. 8. It is necessary to refer to two decisions of this Court on which learned Counsel for the petitioner has relied. In --'Sayeedah Khatoon v. The State of Bihar', AIR 1951 Pat 434, it was observed : "It is quiet clear that under Article 226 it is not merely open to us, but it is our duty, to interfere when, as in these cases, there has been a flagrant and unjustified invasion of the fundamental rights of citizens." It is obvious that the principle laid down in that decision has no application in the present case, because there their Lordships were dealing with a case where there was a flagrant and unjustified invasion of the fundamental rights of citizens. The other decision is reported in --'Jagan Nath Manchanda v. District Magistrate of Allahabad', AIR 1951 All 710. The facts of that case were entirely different. There, the Rent Controller refused to- exercise jurisdiction which clearly vested in him, and it was held that it was a fit case for the issue of a direction in the nature of a writ of mandamus. There are many other decisions of different High Courts in India which have held that where an alternative and appropriate remedy is available to a party which is adequate and almost equally efficacious, a writ under Article 226 of the Constitution of India should not issue. 9. For these reasons, I would dismiss the applications. There will be no order for costs. Sinha, J.
10. I agree.