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1996 Supreme(Cal) 66
IN THE HIGH COURT AT CALCUTTA
Nirendra Krishna Mitra, Dipak Prakas Kundu, JJ.
N. Raghvan Pillai - Appellant
Versus
Union of India & Ors. - Respondents
F. M. A. T. No. 1009 of 1995
Decided on : February 20, 1996
For the Appellant: Mr. Tapan Kr. Mukherjee.
For the Respondents: Mr. A. K. Roy.
The existence of an alternative remedy under the statute is not an absolute bar to challenging an order or notice in a writ court if it is found to be ex facie illegal, arbitrary, mala fide, perverse, or passed without application of mind by the authority concerned.
Headnote:
ANDAMAN & NICOBAR ISLANDS LAND REVENUE & LAND REFORMS REGULATION, 1966 - SECTION 151(1) - WRIT JURISDICTION - EXISTENCE OF ALTERNATIVE REMEDY NOT AN ABSOLUTE BAR - IMPUGNED NOTICE EX FACIE ILLEGAL - ARBITRARY AND WHIMSICAL - QUASHED.
Fact of the Case:
Writ petitioner challenged a notice issued by the authorities under Section 151(1) of the Andaman & Nicobar Islands Land Revenue & Land Reforms Regulation, 1966, alleging non-utilization of the disputed land for the purpose it was granted, causing permanent injury to the land, and illegal transactions by the trustees in violation of the statute.
Finding of the Court:
The court held that the impugned notice was ex facie illegal and issued without application of mind, as it was directed at the petitioner, who was a transferee from the society that had originally leased the land, and not at the society itself. The court also noted that the petitioner had been in possession of the disputed property for 22 years without objection from the authorities, which raised a presumption of acceptance or tacit consent.
Issues: 1. Whether the existence of an alternative remedy under the statute is an absolute bar to challenging an order or notice in a writ court? 2. Whether the impugned notice was ex facie illegal, arbitrary, and whimsical?
Ratio Decidendi: 1. The existence of an alternative remedy under the statute is not an absolute bar to challenging an order or notice in a writ court if it is found to be ex facie illegal, arbitrary, mala fide, perverse, or passed without application of mind by the authority concerned. 2. The impugned notice was ex facie illegal and issued without application of mind, as it was directed at the petitioner, who was a transferee from the society that had originally leased the land, and not at the society itself. The court also noted that the petitioner had been in possession of the disputed property for 22 years without objection from the authorities, which raised a presumption of acceptance or tacit consent.
Final Decision: The court set aside the impugned order of the trial judge and allowed the appeal to the extent of quashing the impugned notice. The court also disposed of the writ application by consent of the parties, quashing the impugned notice but clarifying that the order would not prevent the Island Administration from taking appropriate actions against the society for any violation of statutory provisions.
The judgment of the Court was as follows :––
Mitra, J.: Heard Mr. Mukherjee, learned Counsel for the appellant and Mr. Roy, learned Counsel for the respondents.
2. In the present case, the appellant is the writ petitioner, challenged in the writ application a notice being Annexure 'C' to the writ application, whereby, he was asked to show cause as to why the tenancy of Subhash Deep Colonisation Multipurpose Society Ltd. should not come to an end under Section 151(1) of the Andaman & Nicobar Islands Land Revenue & Land Reforms Regulation, 1966 as it was reported by the Tahasildar, Port Blair that the trustees of the said Society had not utilised the disputed land fully for the purpose for which it was given to the Society, thereby causing permanent injury to the land, besides illegal transaction made by the trustees in violation of the statute, inter alia. on the grounds of arbitrariness, illegality, vagueness, etc. the learned Trial Judge, however, had dismissed the writ application ex parte on 25th March, 1995, holding inter alia, that the same was premature and the appellant/petitioner could not come to writ Court in a short out manner by circuitous way by overlapping the stage as contemplated under Regulation No. 28. Against the said order of the learned Trial Judge, the present appeal has been preferred by the writ petitioner.
3. It is contended by Mr. Mukherjee, learned Counsel appearing on behalf of the appellant/writ petitioner that the learned Trial Judge had acted illegally in dismissing the writ application on the ground of existence of alternative remedy under the statute, without considering at all the settled principle of law, the existence of alternative remedy is not an absolute bar to challenge an order or notice in a writ Court, if it is found that the impugned order or notice is ex facie illegal, arbitrary, mala fide, perverse and passed and/or issued without applying the mind by the authority concerned.
4. Mr. Mukherjee has also contended that the notice challenging in the writ application, being Annexure 'C' to the writ application, which is also included in the Paper Book prepared in connection with the present appeal, being the notice at page 21 of the Paper Book, is ex facie illegal having been issued by the authority concerned without applying its mind at all, inasmuch as, the disputed land as mentioned in the notice was not a bare land at all hut was land with structure standing thereon, which was also subsequently taken by the Indian Navy on rental basis, which tenancy is still continuing, and as such, the question of using the land for purpose other than the purpose for which the said land was originally settled with the trustee from whom the appellant/petitioner obtained the same by way of transfer, did not arise at all.
5. Mr. Mukherjee has further contended that though in the impugned notice, allegation of violation of tenancy and/or settlement agreement between the Society and the Island Administration had been referred to, no notice appeared to have been served upon the Society at all, and only the writ petitioner was asked to show cause by the authority concerned to give reply to the allegations contained in the said notice regarding which the appellant/writ petitioner had no knowledge at all, and the authority concerned, without proceeding against the society, proceeded only against the writ petitioner, when admittedly, there was no privity of contract between the appellant/writ petitioner and the Island Administration and according to Mr. Mukherjee. such fact would clearly prove that there was total non-application of mind by the authority concerned in issuing the impugned notice.
6. Lastly, Mr. Mukherjee adds to submit that though his client namely, toe appellant/writ petitioner had got the disputed property from the Society concerned as far back as in the year 1969, the respondents concerned, after about 22 years thereafter, raised allegations against the Society and the appellant/writ pe
