Allahabad High Court
Sri Ashtbhuji Durga Mata Mandir, ... vs State Of U.P. Thru. Secretary Revenue ... on 4 March, 2020
Equivalent citations: AIRONLINE 2020 ALL 394
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Case :- MISC. BENCH No. - 7449 of 2012 Petitioner :- Sri Ashtbhuji Durga Mata Mandir, Bahraich & Anr. Respondent :- State Of U.P. Thru. Secretary Revenue Deptt. & Others Counsel for Petitioner :- Rama Kant Dixit Counsel for Respondent :- C.S.C.,D.N. Srivastava Hon'ble Ved Prakash Vaish,J.
Hon'ble Narendra Kumar Johari,J.
1. Heard Sri Rama Kant Dixit, learned counsel for the petitioners, Sri Raj Baksha Singh, learned Standing Counsel and Sri D.N. Srivastava, learned counsel for the respondents.
2. Succinctly, the case of the petitioners in present petition is that the petitioner no.2 is Pujari of Sri Ashtbhuji Durga Mata Mandir as well as the Chairman of Land Management Committee of the village Panchayat Kanchhar, Pargana Ikauna, Tehsil and District Bahraich. He received a notice on 06.06.2012 indicating that respondent no.3, the Sub-Divisional Magistrate, Bahraich, in furtherance of the direction of Allahabad High Court, auction of pond situated in gata no. 659 of village Kanchhar is going to be held on 18.06.2012. Whereas the pond is being used by the petitioners as well as public at large on the several religious occasion. The Village Panchayat as well as Area Panchayat expended the money for beautification of the pond in question. As the petitioner got informed about the said auction, he moved a protest application on 18.06.2012 before respondent no. 3 to cancel the said auction and to inform that a Civil Suit bearing R.S. No. 133 of 2008 titled as Sri Ashtbhuji Durga Mata Mandir vs. State of U.P. and others, is pending for the relief of permanent prohibitory injunction, is pending before Civil Judge (J.D.), Court No.5, Bahraich in which the District Magistrate, Baharaich is also one of the parties and the subject matter of the suit is the land of temple, which is situated in gata no.658 and trees and pokhra i.e., pond which is situated in gata no. 659.
On the above application, the Lekhpal of the village submitted its report. Despite the protest application of the petitioner no. 2, the lease of pond has been granted in favour of respondent no. 4 which is an illegal and arbitrary action of the respondent no.3 as well as express violation of law. Prior to holding auction/tender no advertisement has been made in newspaper. The respondent no. 3 also granted the lease of pond in favour of the respondent no. 4 without deciding the application of the petitioner and ignoring the Land Management Committee. The information regarding granting of lease has been obtained by the petitioner by way of information received under Right to Information Act. The lease has been granted only to provide undue advantage to the respondent no.4 and without spot inspection. The petitioner has also moved application before respondent no. 2, District Magistrate, Baharaich as well as police authorities but nothing has been done in the matter.
It is submitted that irregularity has been committed in granting the lease to respondent no. 3. The respondent nos. 4, 5 and 6 have started to create hindrance in peaceful use of the petitioners as well as public at large and under the garb of the lease in question, the respondents no.5 and 6 have encroached the land of the pond, hence the lease in question is liable to be canceled.
Accordingly, the petitioners prayed for following reliefs:
"i. issue a writ order or direction in the nature of CERTIORARI quashing thereby the impugned illegal lease dated 07.08.2012 executed by opposite party no. 3 in favour of opposite party no. 4 by which he has granted the lease for fishing for a period of ten years of pond Khasra no. 659 measuring are .693 hectare situated just adjacent to Gata no. 658 measuring area 0.202 hectare on which the temple of Sri Ashtbhuji Durga Mata Mandir as contained in Annexure No. 1 to this writ petition.
ii. Issue a writ order or direction to the nature of the MANDAMUS commanding the opposite parties not to create any hindrance in peaceful use of the petitioners as well as public at large of the temple pokhara i.e. leased pond gata no. 659 situated in village Panchayat Kanchhar Pargana Ikauna, tehsil and District Bahraich."
3. Per-contra respondents no.1 to 3 have filed their counter affidavit stating that lease of pond situated in plot no. 659 measuring 0.693 hectare situated in Village Kanchhar, Tehsil and District Bahraich, has been executed in favour of respondent no.4 in accordance with the rule for lease, for a period of 10 years which is in compliance of order dated 5.12.2009 passed by the Court in Writ Petition No. 66080 of 2009 (Janak Raj Kewal Vs. State of U.P. and others).
It has further been mentioned in the counter affidavit that before granting and execution of lease deed in question a spot inspection report was called from Naib Tehsildar Vishesharganj, who submitted his report on 01.08.2012 to Tehsildar Bahraich to the effect that the pond in question is neither adjacent to the Temple Ashtabhuji Durga Mata Mandir nor does it effect the Pooja and Aarti of the temple or the public at large in any way. A regular suit no. 133 of 2008 which was filed by the petitioner was dismissed on 01.11.2010 for want of prosecution.
The petitioner who was Pradhan of Village Kanchhar was duly informed about the auction by notice dated 6.6.2012, which is admitted by the petitioner. An inquiry on the complaint of the petitioner was conducted by the Naib Tehsildar, Veshesharganj and during spot inspection it was born out that the allegations made by the petitioner were false and incorrect. As a matter of fact, the petitioner was found in illegal and unauthorized possession of the pond in question that is why the petitioner is trying to misguide the Court for his own interest. The notice dated 06.06.2012 was issued and served on concerned persons to appear and participate in the auction proceedings.
4. The respondents no. 4 and 6 have also rebutted the averments of the petition by way of their counter affidavit wherein they have reiterated the averments made in the counter affidavit filed on behalf of respondents no.1 to 3. Further, they have submitted that the notice was issued by Sub Divisonal Magistrate regarding auction it was duly served upon the Pradhan as well as other members of Land Management Committee and an advertisement was also publised in newspaper Amar Ujala on 16.6.2012 i.e., prior to auction. The petitioner no. 2 was very much present during the auction proceeding and rightly lease was granted in favour of respondent no. 4.
5. We have heard Sri Rama Kant Dixit, learned counsel for the petitioners, Sri Raj Baksh Singh, learned Additional Chief Standing Counsel and Sri D.N. Srivastava, learned counsel for the respondents and perused the record.
6. Learned counsel for the petitioners has submitted that the lease of the pond in question has been granted illegally and without adopting the proper procedure. Before auction, Land Management Committee was not taken in confidence, there was no advertisement in newspaper. Pond in question is adjacent to the temple and the same is used by the public. The beautification of the temple has been done by the petitioner, the objection of the petitioners before granting lease by respondent no. 3 has not been decided by the respondents, therefore, the lease so granted in favour of respondent no. 4 is liable to be canceled.
7. In reply, learned Additional Chief Standing Counsel for respondents no. 1 to 3 submitted that it is admitted by the petitioner no. 2 itself that before auction proceedings, a notice was served to Chairman as well as members of Land Management Committee of the village. The objection raised by the petitioner no. 2 was duly considered by respondent no. 3 and an inquiry was ordered regarding points of objection. In inquiry it has been found that the ground taken by the petitioners in their objection is false and baseless. The report of Naib Tehsildar has been placed on record as Anenxure No. 1 with the counter affidavit of respondents no. 1 to 3. Before auction proceeding, the information was published in newspaper Amar Ujala. Copy of the same has been submitted as Annexure No. 2 with counter affidavit of respondents no. 4 to 6. There is no illegality or irregularity in auction or in execution of lease deed. The petitioners have alternative remedy. The petitioners had also filed a regular suit regarding their claim over the pond in question, which was dismissed by the Court, hence the present petition is barred by principles of the res-judicata.
8. In view of above factual matrix and arguments advanced by learned counsel for the parties, it is clear that according to averments in para 3 of the petition, the temple Sri Durga Mata Mandir is situated in gata no. 658 whereas the pond in question is situated in gata no. 659 of Village Kanchhar, Pargana Ikuana, Tehsil and District Bahraich. It is admitted by the petitioners that before auction, a notice was issued to Chairman/Members of concerned Land Management Committee. The objection/protest application of the petitioners against above notice was considered and an inquiry was conducted by Naib Tehsildar with spot inspection. The inquiry report dated 01.08.2012 shows that the complainant had moved his objection on baseless grounds and just for his own benefit.
9. Learned Additional Chief Standing Counsel has further argued that the petitioners may move application for cancellation of allotment and lease of the pond under Section 198 (4) of the U.P. Zamindari Abolition and Land Reforms Act, 1950, as the matter pertains to the allotment/lease prior to implementation of Revenue Court U.P. 2006. The petitioners have efficacious statutory remedy for redressal of their grievance.
Section 198 (4) of the U.P. Zamindari Abolition And Land Reforms Act, 1950, reads as under:-
" The Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land inquire in the manner prescribed into such allotment and if he is satisfied that the allotment is irregular, he may cancel the allotment and the lease, if any.
10. In the case of 'City and Industrial Development Corporation vs. Dosu aardeshir Bhiwandiwala and Ors.', (2009) 1 SCC 168, the Hon'ble Supreme Court held:
"The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: -
(a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved;
(b) the petition reveals all material facts;
(c) the Petitioner has any alternative or effective remedy for the resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid law; and host of other factor."
11. In another case 'Nivedita Sharma v. Cellular Operators Association of India and Ors.', (2011) 14 SCC 337, the Hon'ble Supreme Court observed that where statutory forum is created by law for redressal of grievances, the writ petition should not be entertained ignoring the statutory dispensation. It was held that the petitioner must exhaust the statutory remedy before resorting to writ jurisdiction. It is true that in certain exceptional cases, the powers of judicial review under Article 226 of the Constitution of India can be invoked, even if, statutory remedy of appeal has not been exhausted.
12. According to the above dictum of Hon'ble Apex Court in the present petition, factually no such exceptional situation or contingencies are present.
13. The Hon'ble Supreme Court in the case of 'Commissioner of Income Tax vs. Chhabil Dass Agarwal', (2014) 1 SCC 603 has observed that statutory forum is created by law for redressal of grievances, the writ petition should not be entertained ignoring the statutory dispensation subject to such exception. The Hon'ble Supreme Court held that it is settled law that non-entertainment of petition under writ jurisdiction by the High Court when an efficacious alternative remedy is available, is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. The Hon'ble Supreme Court has also observed that, undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India despite existence of alternative remedy. However, the High Court must not interfere, if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India.
14. The relevant paras of the judgment in the case of Commissioner of Income Tax vs. Chhabil Dass Agarwal's case (supra), are as under:
"11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86;Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499).
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15. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.
16. In the instant case, the Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. vs. State of Haryana, (1985) 3 SCC 267 this Court has noticed that if an appeal is from "Caesar to Caesar's wife" the existence of alternative remedy would be a mirage and an exercise in futility. In the instant case, neither has the assessee-writ petitioner described the available alternate remedy under the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case."
15. In the present case, the petitioners have raised their grievance against auction as well as against execution of lease deed, which was granted in favour of respondent no. 4 in furtherance of successful auction, for which the petitioners have alternative efficacious statutory remedy under Section 198 (4) of the U.P. Zamindari Abolition and Land Reforms Act, 1950, therefore, in the light of above discussions and dictum of Hon'ble Apex Court, we are of the considered view that the petitioners are not entitled to get any remedy under extraordinary jurisdiction of this Court.
16. Moreover, the allegations made in the petition for cancellation of allotment/lease, requires evidence and the Court can not assess the evidence in a proceeding under Article 226 of the Constitution of India.
17. Accordingly, the writ petition is dismissed. However it is made clear that dismissal of the present petition will not stand in way of the petitioners seeking their remedy as available in law.
[Narendra Kumar Johari, J.] [ Ved Prakash Vaish, J.]
Order Date :- 04.03.2020
S.Verma