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Kishoremal Mehta Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 311 of 1970
Judge
Reported in1978WLN(UC)481
AppellantKishoremal Mehta
RespondentState of Rajasthan and anr.
DispositionAppeal allowed
Cases ReferredRamchandra Rai v. Stats of Modhya Pradesh and Ors. A.I.R.
Excerpt:
.....a writ petition under article 220 merely because question of fast may fall to be determined. the learned single judge, while exercising extraordinary jurisdiction under article 226 of the constitution of india, had jurisdiction to determine questions offset even if they are in dispute.;appeal allowed. - 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 occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained..........or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.in jagdish prasad shastri v. state of u.p. and ors. 1971 uj (sc) 41, the order of the high court rejecting the petition on the ground that the disputed questions of fact fell to be determined was held to be plainly illegal so also in exam industries v. the chief controller of imports and exports and ors. 1971 uj (s.c.) 219, it was observed that the high court though competent to decline to exercise its extraordinary jurisdiction under article 226 of the constitution when it finds that the petition is frivolous or without substance should not throw it out in limine if a prima facie case for investigation is made out. the case was remanded to the.....
Judgment:

S.K. Mal Lodha, J.

1. This is a special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 against the judgment of the learned Single Judge of this Court dismissing the writ petition under Article 226 of the Constitution of India in limine, filed by the appellant.

2. The facts leading to this appeal briefly put are there : In response to the notification, issued by the Rajasthan Forest Department, inviting bids at public auction to exploit four forest koops at Bagol, Saran, Siryari and Jozawar to sell 75,000 mds. of fire woods and 6000 mds of charcoal at prescribed rate at Raikabagh depot, Jodhpur for one year from November 1, 1950 to October 31, 1951, the appellant, who was petitioner before learned Single Judge offered himself as a prospective contractor. His last bid for Rs. 48,1554 annas was accepted on August 10, 1950. It was further stated by the appellant that he raised certain points at the time of auction on which it was agreed that the supply or yield of 75.000 mds. of fire wood and 6000 rods of charcoal from the auctioned area was guaranteed to him subject to 10% variation on either side The Conservator of Forest, Rajasthan, Kotah requested the Government of Rajasthan by his letter dated August 26, 1950 to sanction this contract in favour of the appellant. The Rajasthan Government vide its letter No. F1(221) FOR/50 dated September 14, 1950 from the Revenue Secretary, Government of Rajasthan, Kotah accorded its sanction on the conditions proposed by the Chief Conservator of Forest, Rajasthan Kotah Subsequently, however, no formal document was even drawn up between the State of Rajasthan and the appellant in respect of this contract. A dispute arose between the appellant and the Forest Department because he (appellant) did not get more than 48.736 mds of fire wood by exploiting the afore said four koops and the Forest Department did not make available to the appellant further area to exploit the remaining mounds of fire wood. Thereupon, the appellant filed a suit for damages amounting to Rs. 25,600/- against the State of Rajasthan and this suit was dismissed by this Court by its judgment dated November 17, 1961 on the ground that no formal document was drawn up between the parties regarding the contract, as required by Article 299 of the Constitution, and as such the agreement was unenforceable in law courts.

3. One of the questions raised in the suit was regarding the refund of security money amounting to Rs. 1000/- for which the learned Government Advocate stated that this amount would be adjusted towards the 'theka money' The case of the appellant, further, is that out of the 'theka money' of Rs. 48,155/-, a sum of Rs. 6000/- is alleged to be outstanding against him. As such, the Divisional Forest Officer, Jodhpur sent a certificate under the Rajasthan Land Revenue Act, 1956 for recovery of this amount to the Collector, Jodhpur and a copy of the Same was forwarded to the Collector, Kotah requesting him that this amount along with interest be recovered from the appellant, who was working in the Marshall & Co., Station Road, Kotah. The Collector, Kotah started recovery proceedings and the Tehsildar, Ladpura Kotah, served the appellant with a notice to deposit Rs. 12,000/- failing which the amount was to be recovered by attachment and auction of the appellant's property. The copies of the recovery certificate (Ex. 3) and letter from the Divisional Forest Officer to the Collector, Jodhpur endorsed to the Collector, Kotah dated October 21, 1964 (Ex. 4) and the notices (Ex. 5 and Ex. 6) were submitted with the writ petition. A certified copy of the order-sheet (Ex. 7) dated May 6, 1969 of the Court of Additional Tehsildar, Ladpura was also submitted. It was prayed by the appellant in the writ petition under Article 226 of the Constitution of India, that writ of mandamus, certiorari or prohibitio or any one or more of them or any other appropriate writ, order or direction quashing the recovery proceedings of Rs. 12000/- started on the basis of recovery certificate of the Divisional Forest Officer, Jodhpur be issued and the State of Rajasthan, Collector Kotah, Divisional Forest Officer, Jodhpur and the Tehsildar Ladpura, Kotah be prohibited from recovering any amount from the petitioner (appellant) in connection with the recovery certificate This writ petition was filed on September 2, 1970. It came up for admission on September 18, 1970 before the learned Single Judge. The learned Single Judge was of the opinion that certain questions of fact were required to be determined before granting relief to the petitioner (appellant), the agreement entered into between the State and the petitioner (appellant) did not acquire the status of a contract under Article 299 of the Constitution of India, but the State Government can still claim that the petitioner had taken advantage of the agreement and, therefore, it can make a demand from the petitioner about the amount sought to be realised from him. According to the learned Single Judge, this, by itself is a question of fact which cannot be agitated before this Court in the extraordinary jurisdiction. In this view of the matter, he held the writ petition to be misconceived and, therefore, dismissed it summarily.

4. Being aggrieved by the aforesaid judgment, the appellant has preferred this special appeal.

5. We have heard Mr. N.M. Singhvi, learned Counsel for the appellant and Mr. M.D. Purohit, learned Additional Government Advocate for the respondents.

6. The main ground taken in the writ petition is that no formal agreement was executed between the parties in writing as required by Article 299(1) of the Constitution of India and, therefore the recovery proceedings are illegal and that the respondents could not take resort to the processes provided under the Rajasthan Land Revenue Act, 1956 or under the Rajasthan Public Demand Recovery Act, 1952 for making recovery of the alleged outstanding amount from the appellant. The learned single Judge has observed.

certain questions of fact shall have to be determined before granting relief to the petitioner.... This by itself is a question of fact and therefore it cannot be agitated before this Court in the extraordinary jurisdiction.

But what facts were in dispute & what were admitted, could only be deter mined after the affidavit of reply was filed by the respondents.

7. In Sm. Gunwant Kaur and Ors. v. Municipal Committee : AIR1970SC802 , Shah, J. as he then was, speaking for the court, observed as under:

The High Court is not deprived of its jurisdiction to entertain a petitioner under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226, the High Court has jurisdiction to try issues both of fact and law. Exercise of jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made, dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.

In Jagdish Prasad Shastri v. State of U.P. and Ors. 1971 UJ (SC) 41, the order of the High Court rejecting the petition on the ground that the disputed questions of fact fell to be determined was held to be plainly illegal So also in Exam Industries v. The Chief Controller of Imports and Exports and Ors. 1971 UJ (S.C.) 219, it was observed that the High Court though competent to decline to exercise its extraordinary jurisdiction under Article 226 of the Constitution when it finds that the petition is frivolous or without substance should not throw it out in limine if a prima facie case for investigation is made out. The case was remanded to the High Court with a direction that the petition be re-admitted to the fife and be dealt with and disposed of according to law.

8. The case of Sm. Gunwant Kaur : AIR1970SC802 was followed in Babubhai Muljibhai Patel v. Nandlal Khodidas Barot and Ors. : [1975]2SCR71 , wherein his Lordship Khanua, J. speaking for the court observed as follows:

The object of Article 226 is to provide a quick & inexpensive remedy to aggrieved parties Power has consequently been vested in the High Courts to issue to any persons or authority, including in appropriate cases any Government within the jurisdiction of the High Court orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitio, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petition, the entire purpose of having a quick and inexpensive remedy would be defeated A writ petition under Article 226, it needs to be emphasised is essentially different from a suit and it would be incorrect to as imitate and incorporate the procedure of a suit to the proceedings of a petition under Article 226. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right of relief, question of fact may fall to be determined. In a petition under Article 226, the High Courts has jurisdiction to try issues both of fact and law Exercise of the jurisdiction is no doubt discretionary but the discretion must be exercised on sound judicial principles.

Learned Counsel for the appellant drew our attention to Ramchandra Rai v. Stats of Modhya Pradesh and Ors. A.I.R. 1971 SC 128. In that case, the appellant who was a licensee of a liquor shop applied to the High Court of Madhya Pradesh for a writ of mandamus directing the Excise Department of the State to recover licence fee for those days in respect of which the liquor was not supplied to the appellant. The writ petition was summarily dismissed by the High Court It was observed by the High Court that the supply of the liquor was under a contract to the Government and 'if the Government had committed a breach of the contract the remedy is else where'. It was observed in that case that it cannot, without further investigation, be said that the rights and obligations arising under a licence issued under a statutory authority are purely contractual. In this view of the matter, their Lordships held that the High Court was in error in summarily rejecting the petition. The order of the High Court was set aside and direction was given to it to issue rule to the State and decide the case on the merits. It is, therefore, clear that the High Court is not deprived of its jurisdiction to entertain a writ petition under Article 226 merely because question of fact may fall to be determined. The learned Single Judge, while exercising extraordinary jurisdiction under Article 226 of the Constitution of India, had jurisdiction to determine questions of fact even if they are in dispute and this is a case in which in the interest of both the parties, the learned Single Judge should have entertained the petition and called for affidavit in reply from the respondents and should have proceeded to try the petition. On the consideration of averments in the petition and materials placed before the learned single Judge, we are satisfied that the appellant was entitled to have grievance against the respondents tried.

9. The appeal is, therefore allowed and the order of the learned Single Judge, dated September 18, 1970 is set aside. The case be re-admitted to its original number and it is seat back to the Single Bench for hearing and disposal according to law after issuing a Rule to the respondents concerned, and after considering the affidavit in reply and the other evidence produced by the parties. Casts of this appeal will be the costs in the petition.


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