1978 Supreme(Raj) 253
RAJASTHAN HIGH COURT
D.P.Gupta, J.
Sukh Raj and Ors. - Appellants
Versus
Sub Divisional Officer, Jalore and Ors. - Respondent
S.B. Civil Writ Petition No. 418 of 1978.
Decided On : 17-07-1978
Advocates:
For the Petitioner:N.M. Singhvi, Advocate.
A writ petition is not maintainable if an alternative remedy is available under a specific law or subordinate legislation, and the remedy provided by the Act is of wide amplitude.
Headnote:
WRIT PETITION - MAINTAINABILITY - ALTERNATIVE REMEDY - EXHAUSTION - RAJASTHAN TENANCY ACT, 1955 - SECTIONS 80, 225, 230 - CODE OF CIVIL PROCEDURE, 1908 - ORDER 21 RULE 22 - CONSTITUTION OF INDIA, 1950 - ARTICLE 226 - CLAUSE (3) - A writ petition is not maintainable if an alternative remedy is available under a specific law or subordinate legislation, and the remedy provided by the Act is of wide amplitude.
Fact of the Case:
A writ petition was filed challenging an order passed by the Assistant Collector in execution proceedings arising out of a revenue suit. The petitioner argued that the decree was a nullity as one of the respondents had died during the pendency of the appeal before the Revenue Appellate Authority, and the appeal had abated. The Assistant Collector refused to decide the objection and proceeded with the execution of the decree.
Finding of the Court:
The court held that the petitioner had an alternative remedy by way of an appeal under Section 225 of the Rajasthan Tenancy Act, 1955, or by way of a revision petition before the Board of Revenue under Section 230 of the Act. The court further held that the remedy provided by the Act was of wide amplitude and covered the petitioner's grievance.
Issues: Whether a writ petition is maintainable if an alternative remedy is available under a specific law or subordinate legislation.
Ratio Decidendi: The court relied on the decision of the Gujarat High Court in Ahmedabad Cotton Mfg. Co. v. Union of India, AIR 1977 Gujarat 113 (FB), which held that if an Act provides for remedies by way of appeal and revision of wide amplitude, they will have to be exhausted first. The court also held that the Rajasthan Tenancy Act provides for direct remedies of appeal and revision to a wide extent, and therefore, the petitioner was required to exhaust the remedy available to him under the Act before filing a writ petition.
Final Decision: The court dismissed the writ petition as not maintainable.
JUDGMENT
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 Divisional 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 Civil Procedure Code 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 Gujarat 113 (FB) 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 b
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