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Gokulchand Vs. Government of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberWrit Appeal Nos. 28 and 33 of 1950
Judge
Reported inAIR1952Raj112
ActsConstitution of India - Article 226
AppellantGokulchand
RespondentGovernment of Rajasthan
Appellant Advocate S.R. Pareek, Adv.
Respondent Advocate Ram Avtar Gupta, Govt. Adv.
DispositionApplications dismissed
Cases ReferredD. v. R. S. N.
Excerpt:
.....1948. the petitioner then served a notice on the government as well as the municipality that the government or the municipality had no jurisdiction to cancel the sale made in favour of the petitioner, and that the action of the municipality in threatening to dispossess the petitioner was illegal. hold good even under article 226 of the constitution where a question of issuing a writ of certiorari is raised. union of india',air 1951 rajas 94 (2). but in'air 1950 bom 363' and 'air 1950 pat 322' it has clearly been held that in those cases there was no adequate legal remedy available to the petitioner; but when it is a common grievance of every day happening, usually redressed by a routine machinery, it is altogether unnecessary to invoke article 226.'13. the petitioners can very well..........bitto devi's case are that she purchased three plots of land adjacent to her house from the dholpur municipality on the 17th of november 1948 on payment of rs. 413/10/-. permission to construct houses on the three plots was obtained from the dholpur municipality on the 6th june 1949 which was again renewed on the 16th of november 1949. on the 6th of january 1950 a notice was served upon the petitioner by the secretary, municipality cancelling the sales. objections were filed by the petitioner on the 7th of january 1950 before the municipal committee, dholpur, which were rejected on the 31st of january 1950 on the ground that the rajasthan government had decided to cancel the sale made by the municipality in favour of the petitioner. a representation was then filed by the.....
Judgment:

Ranawat, J.

1. These are two applications under Article 226 of the Constitution of India. As the same points are at issue in both the applications they are disposed of by one judgment.

2. Miscellaneous application No. 33 of 1950 has been filed on behalf of Shrimati Bitto Devi and Miscellaneous application No. 28 of 1950 has been filed on behalf of Seth Gokulchand. The opposite parties in both the applications are (1) Government of Rajasthan, (2) Secretary, Local Self Government Department, Rajasthan, (3) Municipality, Dholpur.

3. The facts of Shrimati Bitto Devi's case are that she purchased three plots of land adjacent to her house from the Dholpur Municipality on the 17th of November 1948 on payment of Rs. 413/10/-. Permission to construct houses on the three plots was obtained from the Dholpur Municipality on the 6th June 1949 which was again renewed on the 16th of November 1949. On the 6th of January 1950 a notice was served upon the petitioner by the Secretary, Municipality cancelling the sales. Objections were filed by the petitioner on the 7th of January 1950 before the Municipal Committee, Dholpur, which were rejected on the 31st of January 1950 on the ground that the Rajasthan Government had decided to cancel the sale made by the Municipality in favour of the petitioner. A representation was then filed by the petitioner but it was also rejected by the Rajasthan Government on the 18th of March, 1950. But the sale of one of the plots was accepted by the Government on the ground that constructions had already been made on it. As regards the other two plots the Government expressed its intention to cancel the sales. The petitioner has then filed an application under Article 226 of the Constitution of India as she apprehends infringement of her fundamental rights. The petitioner's possession of the two plots of land which were purchased by her is being threatened by the opposite parties.

4. The case of Seth Gokulchand is that he purchased a plot of land from the Dholpur Municipality on the 11th of November, 1948 on payment of Rs. 869/8/-. A patta was granted to him and the possession of the plot was also delivered. He obtained permission to construct houses on the land on the 27th of December, 1948 but the secretary of the Municipality, Dholpur, informed the petitioner by his letter No. 54 of the 13th June, 1950 that the Government of Rajasthan had cancelled the sale of the plot which was made in favour of the petitioner in November, 1948. The petitioner then served a notice on the Government as well as the Municipality that the Government or the Municipality had no jurisdiction to cancel the sale made in favour of the petitioner, and that the action of the Municipality in threatening to dispossess the petitioner was illegal. No reply was sent to this notice of the petitioner by the opposite parties. He has therefore filed an application under Article 226 of the Constitution of India, as there is a danger of the infringement of his fundamental rights to hold property,

5. In both these applications the prayer is that the orders of the Government of Rajasthan and the Secretary of the Local Self Government Department and the Municipality, Dholpur, regarding cancellation of the sales in favour of the petitioners may be declared null and void and be quashed and the opposite parties be prohibited from interfering with the rights of the petitioners over the plots of land sold to them which are in their possession. A further prayer has been added that the Municipality may be restrained from selling the plots of land which now belong to the petitioners.

6. Replies were filed to both the applications by the Secretary to the Government of Rajasthan in the Local Self Government Department. The sales alleged by the petitioners in both the cases have been disputed and it is pleaded that in both the cases the Sub-Divisional Officer who made the sales had no authority whatsoever to conduct the sales on behalf of the Municipality, Dholpur. The Sub-Divisional Officer who purported to act as the Chairman of the Municipality was in fact not the Chairman of the Municipality under the provisions of the Municipal Act, Dholpur, 1936. The rights of the petitioners over the disputed plots of land have not been recognised by the Municipality. It is further said that the Municipality contemplates to sell these plots of land by auction as the previous sales made by the Sub-Divisional Officers were invalid.

7. In both the cases validity of the sales made by the Sub-Divisional Officer, Dholpur, purporting to act as the Chairman of the Dholpur Municipality is disputed by the opposite parties. The case on behalf of the petitioners is that even if their titles be defective in some respect or the other the Municipality or the Government have not the jurisdiction to take the law into their hands and to treat the sales as nullity and to dispossess the petitioners, to whom the possession of the plots has been delivered by the Municipality, Dholpur. The action of the opposite parties is alleged to be illegal and a writ or direction under Article 226 of the Constitution of India is sought.

8. The learned Government-Advocate has argued that since other specific and adequate legal remedy is available to the petitioners by way of regular civil suits they arc not entitled to any relief under Article 226 of the Constitution.

9. The language of Article 226 of the Constitution of India is certainly very wide but it cannot be so construed as to provide an alternative remedy to all sorts of civil or criminal actions. The intention of the makers of the Constitution should be understood to be to provide a remedy where no specific and adequate legal remedy would otherwise be available. In 'PROVINCE OF BOMBAY v. KHUSHAL-DAS S. ADVANI', AIR 1950 SC 222 at p. 227, it has been observed by his Lordship Kania C. J. as follows:

'The decision of the Provincial Government about public purpose is therefore an administrative act.

If the Government erroneously decides that fact it is open to question in a Court of law in a regular suit, just as its action, on its decision on the facts mentioned in the proviso to Section 3 and in Section 4 is open to question in a similar way. The argument that a suit may be infructuous because a notice under Section 80, Civil P. C. is essential and that remedy is therefore inadequate is unhelpful. Inconvenience or want of adequate remedy does not create a right to a writ of certiorari. It is clear that such writ can be asked for if two conditions are fulfilled. Firstly, the decision of the authority must be judicial, and, secondly, the challenge must be in respect of the excess or want of jurisdiction of the deciding authority.'

10. Even though this decision was in a case which arose before the Constitution of India came into force the observations made by His Lordship Kania C. J. hold good even under Article 226 of the Constitution where a question of issuing a writ of certiorari is raised. In 'RASHID AHMED v. MUNICIPAL BOARD KAIRANA', AIR 1950 SC 163, which is a case directly under Article 226 of the Constitution of India his Lordship S. R. Das, J. has observed that

'there can be no question that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs, but the powers given to this Court under Article 32 are much wider and are not confined to issuing prerogative writs only.'

The position of law is more or less clear that the remedy provided by Article 226 of the Constitution is not intended to be an alternative remedy to the normal process of a decision in an action brought in the Courts of law. The powers under this Article should be used only in those clear cases where no other specific and adequate remedy is available. In 'SHYAMAPADA v. ABANI MOHAN', AIR 1951 Cal 420, it has been observed that:

'Recourse ought not to be allowed to an extraordinary remedy when it is not really needed, and a mandamus will never be granted to enforce the general law of the land which may be enforced by action. In the case of informations or writs in the nature of Quo Warranto such informations or writs are not issued as a matter of course where there is an alternative remedy which is equally appropriate and effective. Under Article 226, the power of the Court is not confined to the power to issue writs in the nature of Mandamus and other writs mentioned therein. Under the Article the Court has wider powers. But the power of the Court is discretionary and the proceedings under Article 226 being of a summary and coercive nature the powers under the Article should be sparingly used and only in those clear cases where the rights of person have been seriously infringed and he has no other adequate and specific remedy available to him.'

11. Similarly in 'UNION OF WORKMEN OF R. S. N. AND I. G. N. RLY. CO., LTD. v. R. S. N. CO. LTD.', AIR 1951 Assam 96, it has been held that a remedy under Article 226 of the Constitution is not intended to provide an additional or alternative remedy to a regular civil suit. 'BUKHTIARPUR BIHAR LIGHT RLY. CO., LTD. v. STATE OF BIHAR', AIR 1951 Pat 231; 'MANOHAR RAMKRISHNA v. G. G. DESAI', AIR 1951 Nag 33 and 'BHAGWAN PRASAD v. DY. COMMISSIONER', AIR 1951 Vin P 41, also support this view. The learned counsel of the petitioners has referred to the cases in 'JESHINGBHAI ISHWARLAL v. EMPEROR', AIR 1950 Bom 363; 'BRAJNANDAN SHARMA v. THE STATE OF BIHAR', AIR 1950 Pat 322 and 'MADANGOPAL v. UNION OF INDIA', AIR 1951 Rajas 94 (2). But in'AIR 1950 Bom 363' and 'AIR 1950 Pat 322' it has clearly been held that in those cases there was no adequate legal remedy available to the petitioner; hence both these authorities are distinguishable and they do not support the claim of the petitioners. As regards 'AIR 1951 Rajas 94 (2)', it may be pointed out that it was a case of a writ of prohibition and these cases are not those in which writs of prohibition can be claimed.

12. Lastly, the learned counsel of the petitioners has invited the attention of this Court to 'RAMA GOVIND SINGH v. CHIEF COMMISSIONER, V. P.', AIR 1951 Vin P 3, in which it has been held that though the objector has another remedy open to him by way of declaratory suit in the proper civil Court it would not be equally speedy, convenient & effectual & therefore; a writ of certiorari should be issued to meet the ends of justice and convenience. The remedy by an action by way of regular civil suit has been held to be lengthy, costly & very slow. It may be pointed out that the remedy provided by Article 226 is an extraordinary one and some inconvenience or delay in getting redress by filing a regular suit in the law Courts alone should not be considered sufficient to entitle a person to have recourse to the extraordinary remedy under Article 226 of the Constitution unless it can be shown that delay and inconvenience would be such as to make the relief nugatory. If a lenient view is taken in this behalf all the persons instead of going to the ordinary Courts of law would come to the High Court under Article 226 of the Constitution where ordinarily they are entitled to maintain a civil or criminal action according to law. The opinion expressed in 'AIR 1951 Vin P 3, has been subsequently changed by the decision of the same Court in 'BHAGWAN PRASAD v. DY. COMMISSIONER', AIR 1951 Vin P 41, wherein it has been held that 'Article 226 is so widely worded that theoretically it can be invoked in any dispute. That is, however, not the intention of the framers of the Constitution. The remedy provided by this Article is at all events an extraordinary one. There should be either no other alternative remedy or the alternative remedy should be so inexpedient or roundabout that it would be unconscionable to drive the party to have recourse to it. But when it is a common grievance of every day happening, usually redressed by a routine machinery, it is altogether unnecessary to invoke Article 226.'

13. The petitioners can very well maintain an action by way of a regular civil suit and get the desired relief, under Section 42 of the Specific Relief Act. A specific and adequate remedy is therefore available to the petitioners and it appears unnecessary for them to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Mere slight inconvenience or a little delay. should not in these cases be considered sufficient to justify the issue of a writ or direction by this Court in exercise of its extraordinary powers, specially when the rights of the petitioners in these cases are disputed and not very clear.

14. Both the applications, therefore, failand are rejected with costs, which are taxed atRs. 50/- in each case.


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