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Sukh Raj Vs. Sub Divisional Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 418 of 1978
Judge
Reported in1978WLN(UC)228
AppellantSukh Raj
RespondentSub Divisional Officer and ors.
DispositionPetition dismissed
Cases ReferredIn Krishna Gopal Joshi v. The Municipal Board
Excerpt:
.....tenancy article--executing revenue court refusing to decide question relating to abatement of appeal--alternative remedy by way appeal or revision available under rajasthan tenancy act--held, writ cannot be availed.;the rajasthan tenancy act provides for direct remedies and of appeal and revision to a wide extent the present writ petition cannot, therefore, be entertained as the petitioner has failed to first exhaust the remedy available to him under the act.;writ dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged..........of such wide amplitude but only for orders under the act, in cases of such purported orders, the appeal remedy could rot come in the way of the petitioner as it could not be said to have been provided for such purported orders which are null and void and which it would not be obligatory for the simple reason that such an appeal remedy would not be able to cure the detect even if the appeal conforms the original order bearing this indelible mark of nullity.7. in krishna gopal joshi v. the municipal board, phalodi 1977 rlw 163, i have taken a view similar to that which has been expressed by the full bench of the gujrat high court in abemdabad cotton mfg. co. case a.i.r. 1977 guj. 113 there is no doubt that the alternative remedy should be of wide amplitude and should be provided by the.....
Judgment:

D.P. Gupta, J.

1. This writ petition has been filed against the order passed by the Assistant Collector Jalore in execution proceedings arising out of a revenue suit.

2. A suit Was filed by respondent No. 2 in the Court of Sub Divisional1 Officer (Assistant Collector), Jalore but the same was dismissed after trial. As appeal was preferred by the respondent No. 2 in the Court of the Revenue Appellate Authority. Jodhpur which was allowed and the suit was decreed by its order dated September 30, 1975 declaring respondent No. 2 to be Khatedar tenant of the disputed land and directing the ejectment of the defendants from the suit land. The decree holder filed an execution application in the Court of the Assistant Collector, Jabore and notice under Order 21 Rule 22 CPC was issued The judgment debtors raised an objection that one of the respondents, namely Taga, had died during the pendency of the appeal before the Revenue Appellate Authority and as such the appeal had abated and decree passed in appeal was a nullity and could not be executed. The decree holder argued before the Executing Court that the judgment debtors had filed a second appeal before the Revenue Board against the decree passed by the Revenue Appellate Authority, which was dismissed in default and as such the objection raised by the judgment debtors about the abatement of the Appeal on account of the death of one of the defendants during the pendency of the appeal in the Court of the Revenue Appellate Authority could not be entertained by the executing Court. The Executing Court by its order dated April 19, 1978 accepted the contention of the decree holder & did not decide the objection of the judgment debtors relating to the alleged abatement of the appeal and decided to proceed with the execution of the decree It is against the aforesaid order passed by the executing court that the present writ petition has been filed in this Court.

3. In the present writ petition, it was painted out to the learned Counsel for the petitioner that an alternative remedy by way of an appeal or revision is open to the petitioners against the order passed by the Assistant Collector in the execution proceedings Learned Counsel thereupon submitted that this Court should entertain the writ petition because the Assistant Collector refused to decide the question whether the decree was a nullity or not and placed strong reliance upon the decision in Ahemadabad Cotton Mfg. Co. v. Union of India AIR 1977 Guj. 113 in support of his contention.

4. The revenue suit and the appeal therefrom in the Court of the Revenue Appellate Authority as well as the proceedings in execution of the decree pending in the Court of the Assistant Collector were instituted and are being proceeded with under the provisions of the Rajasthan Tenancy Act 1955 (hereinafter referred to as the Act). The Act wan enacted for the purpose of consolidation of the law relating to tenancies of agricultural lands and provides for the procedure and jurisdiction of the Revenue Court in dealing with the revenue suits. Section 80 of the Act read with the fourth schedule' makes the provisions of the Code of Civil Procedure applicable to the trial of Revenue suits with some modifications. The Act makes exhaustive provisions for appeals and revision petitions. Section 225 of the Act provides for the remedy of in appeal from a final order passed by the Assistant Collector or Sub Divisional Officer to the Revenue Appellate Authority, while Section 230 provides for the power of the Board of Revenue to entertain revision petition against orders of the subordinate revenue Courts, which is analogous to the jurisdiction of this Court under Sec ion 115 CPC. Thus, the Act provides a complete code, so far as the matters which are tribal by the Revenue Courts are concerned, and also for execution of the orders or decree parsed by the Revenue Courts

5. If the petitioner, in the present case, felt aggrieved against (he order passed by the Assistant Collector dated April 19, 1978, he has clearly a remedy by wav of an appeal under Section 225 of the Act or by way of revision petition before the Board of Revenue under Section 230 of the Act. Clause 3 of Article 226 of the Constitution of India, after its amendment by the Constitution (42nd Amendment), Act 1976, enjoin is upon this Court not to entertain a writ petition in respect of an injury, referred to in sub clause (b) or sub clause (c) of Clause (I) of Article 226, if any other remedy for such redress is provided for by or under any law for the time being in force. The case of the petitioner falls under sub clause (c) of Clause (1) of Article 226, as he complains of an injury by reason of alleged illegality in the proceedings before the Assistant Collector in not considering his objections to the validity of the decree.

6. I am of the view that as an effective alternative remedy under the Act itself for redress of the grievance of the petitioner is available, this writ petition should not be entertained by this Court The decision of the full bench of the Gujarat High Court in Ahemdabad Cotton Mfg. Co. case AIR 1977 Guj. 113 (FB) also supports the view that I am taking in this case. It has been observed in the aforesaid case by learned Judges of the Gujarat High Court as tinder:

The amplitude of this fetter is made dependent on the existence of the other effective alternative remedy which is in terms provided whether by the specific law or under the subordinate legislation of such Jaw. One thing is certain that such alternative remedy must be specifically provided for Therefore, the amplitude of the fetter would depend on the amplitude of such alternative remedy which is provided for direct attack by or under the other law in question and not on any general remedy of a civil suit by way of a collateral attack.

Then is was further observed in the aforesaid case.

Every Act would have to be examined when such a question of the existence of alternative remedy arises and it would have to be found as to what is the amplitude if normal Act remedies for appeal or revision so that the question of real or purported order would be decisive. If the Act remedy is so wide as to cover even purporte1 order so that no part of the activity of the authority is collateral activity, the Act having provided for direct remedy to such a wide extent, the remedy would have to be first exhausted. On the other hand, where the Act remedies are not of such wide amplitude but only for orders under the Act, in cases of such purported orders, the appeal remedy could rot come in the way of the petitioner as it could not be said to have been provided for such purported orders which are null and void and which it would not be obligatory for the simple reason that such an appeal remedy would not be able to cure the detect even if the appeal conforms the original order bearing this indelible mark of nullity.

7. In Krishna Gopal Joshi v. The Municipal Board, Phalodi 1977 RLW 163, I have taken a view similar to that which has been expressed by the full bench of the Gujrat High Court in Abemdabad Cotton Mfg. Co. case A.I.R. 1977 Guj. 113 There is no doubt that the alternative remedy should be of wide amplitude and should be provided by the specific law or by subordinate legislation made there under & also that the general remedy by way of suit available at the common law cannot be considered to be an alternative remedy for the purposes of Clause (3) of Article 226 of the Constitution. But as observed by their lordship of the Gujarat High Court, if the Act provides for remedies by way of appeal and revision application of wide amplitude, they will have to be exhausted first. I am in agreement with the views expressed by the Gujarat High Court in Ahemdabad Cotton Mfg. Co. case A.I.R. 1977 Guj. 113. How ever in the present case the Rajasthan Tenancy Act provides for direct remedies of appeal and revision to a wide extent. The present writ petition cannot, therefore, be entertained as the petitioner has failed to first exhaust the remedy available to him under the Act.

8. In view of the aforesaid discussion, the writ petition is not maintainable because the rule of exhaustion of the alternative remedy available under the Act has not been complied with and as such the same is dismissed.


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