The High Court will not ordinarily entertain a writ petition under Article 226 of the Constitution where an alternative and equally efficacious remedy is open to the aggrieved party, and the existence of an adequate legal remedy is a factor to be considered in granting writs.

Headnote:
LAND REFORM - REGULARISATION OF UNAUTHORISED OCCUPATION - LANDLESS PERSON - RAJASTHAN TENANCY ACT, 1955 - RAJASTHAN LAND REVENUE RULES, 1970 - RAJASTHAN TENANCY RULES, 1955 - RULE 20 - SECTION 5(26A) - SECTION 180 - SECTION 91 - ARTICLE 226 - ARTICLE 227 - WRIT OF CERTIORARI - WRIT OF MANDAMUS - WRIT OF PROHIBITION - JURISDICTION - DISCRETION - EXHAUSTION OF ALTERNATIVE REMEDIES - LACK OF JURISDICTION - WRIT OF PROHIBITION - SECTION 75 - APPEAL - LIMITATION - POSSESSION - DELIVERY - STANDING CROP - AUCTION - SALE - CONFIRMATION - DELIVERY OF POSSESSION - WRIT PETITION - DISMISSAL.
Fact of the Case:

Petitioners, landless cultivators, occupied government land in 1972 and sought regularisation of their unauthorised occupation under relevant circulars and rules. The Tehsildar issued a notice under Section 91 of the Rajasthan Land Revenue Act, 1956, and allotted the land to another person. Petitioners challenged the allotment and sought regularisation of their occupation by way of a writ petition under Articles 226 and 227 of the Constitution.
Finding of the Court:

1. The petitioners were not landless persons as defined under Section 5(26A) of the Rajasthan Tenancy Act, 1955, and therefore, not entitled to regularisation of their unauthorised occupation under Rule 20 of the Rajasthan Land Revenue Rules, 1970. 2. The Sub-Divisional Officer had the discretion to regularise or not the unauthorised occupation of landless persons, and the petitioners had no entitlement to regularisation as a matter of right. 3. The petitioners failed to exhaust the alternative remedy of appeal under Section 75 of the Rajasthan Land Revenue Act, 1956, against the order of dispossession under Section 91 of the Act. 4. The High Court declined to exercise its extraordinary jurisdiction under Article 226 of the Constitution in view of the petitioners' failure to exhaust alternative remedies and the absence of good grounds for bypassing the remedy of appeal.
Issues: 1. Whether the petitioners were landless persons entitled to regularisation of their unauthorised occupation under Rule 20 of the Rajasthan Land Revenue Rules, 1970? 2. Whether the Sub-Divisional Officer had the discretion to regularise or not the unauthorised occupation of landless persons? 3. Whether the petitioners exhausted the alternative remedy of appeal under Section 75 of the Rajasthan Land Revenue Act, 1956, against the order of dispossession under Section 91 of the Act? 4. Whether the High Court could exercise its extraordinary jurisdiction under Article 226 of the Constitution in view of the petitioners' failure to exhaust alternative remedies and the absence of good grounds for bypassing the remedy of appeal?
Ratio Decidendi: 1. The definition of 'landless person' under Section 5(26A) of the Rajasthan Tenancy Act, 1955, requires an agriculturist by profession to hold land less than the minimum area prescribed for the district or part of the district. The petitioners failed to establish that they were landless persons as defined under the Act. 2. Rule 20 of the Rajasthan Land Revenue Rules, 1970, empowers the Sub-Divisional Officer to regularise the unauthorised occupation of landless persons, but such regularisation is discretionary and not a matter of right. 3. The petitioners failed to file an appeal within the limitation period against the order of dispossession under Section 91 of the Rajasthan Land Revenue Act, 1956, and instead filed a writ petition under Articles 226 and 227 of the Constitution. 4. The High Court declined to exercise its extraordinary jurisdiction under Article 226 of the Constitution in view of the petitioners' failure to exhaust alternative remedies and the absence of good grounds for bypassing the remedy of appeal.
Final Decision: The writ petition was dismissed without any order as to costs.

JUDGMENT

1. - Petitioners Qurban son of Lakha and Lakha son of Shafi have filed this petition under Articles 226 and 227 of the Constitution of India praying that a writ of certiorari or prohibition or any other appropriate writ, order or direction may be issued restraining the respondents State of Rajasthan and Tehsildar Chohtan froth ejecting them from khasra No. 90 measuring 33 bighas 11 biswas situate in village Jalila, tehsil Chohtan and further that a direction may also be issued for regularisation of their case Whereby quashing order Anx. C dated April 19, 1979.

2. The petitioners are residents of village Jalila and are landless cultivators. Their case is that in Smt. 2032 they took possession of Sawai Chak Government land khasra No. 90 measuring 33 bighas and 11 biswas, and since then, they have been in continuous cultivatory possession of it. Their case further is that the unauthorised occupation made on the aforesaid land should have been regularised as per Government Circulars No. F (20) Rev./B/71 dated April 13, 1971 and No. 16(7) Rev/Gr(sic)v/77 dated April 14, 1977 and Rule 20 of the Rajasthan Land Revenue Rules, 1970 (hereinafter to be referred to as 'the Rules'). The petitioners have stated that they made applications in 1978 and also on April 29, 1979, but no orders were passed thereon. Instead of passing any order, the Tehsildar, Chohtan, issued a notice under Section 91 of the Land Revenue Act, 1956 (No. XV of 1956 (for short, 'the Act' here after). The land was allotted by means of Anx C, dated April 19, 1979 to Bhoja. They have, thereafter, filed the present; wit petition under Articles 226 and 227 of the Constitution for the reliefs mentioned above.

3. A show cause notice was ordered to be issued to the respondents on June 14, 1979. The respondents have filed reply to the, writ petition supported by an affidavit of Shri Chhattarsingh, Sub Divisional Officer Burner along with Anxs. R1 to R4. Thereafter, the petitioners have filed rejoinder to the reply on September 10, 1979. On August 9, 1979, an application was moved by the learned Counsel for the petitioner praying, therein that the Additional Collector, Barmer; SDO. Banner and Bhoja son of Hatla may be impleaded as respondents Nos. 3, 4 and 5 respectively.

4. The writ petition is contested on various grounds. It was, inter alia, contended that the petitioners are not in possession of the land measuring 33 big has 11 bis was of khasra No. 90 and that in pursuance of, the notice, issued under Section 91 of the Act, the order for eviction of the petitioner was passed on October 22, 1978. The copy of the order dated October 22, 1978 has been filed by the respondents marked as Anx R3. It was stated by the respondents that the said land was allotted to Bhoja on April 10, 1979 and possession of the same was delivered to him on May 28, 1979. To show delivery of possession to Bhoja, Ghatna Bahi Anx. R4 has been filed by the respondents.

5. I have heard Mr. A.B. Sindhi, learned Counsel for the petitioners and Mr. Rajesh Balia, Deputy Government Advocate.

6. It was contended by the learned Counsel far the petitioners that they are landless persons and as such, According to the aforementioned Government Circulars and Rule 20 of the Rules, the encroachment made by them should have been regularised. The learned Deputy Government Advocate disputed that the petitioners are landless persons and as such encroachment made by them Cannot be regularised in view of Section 5(26A) of the Rajasthan Tenancy Act (No. III of 1975) (which will hereinafter, for the sake of brevity, be referred to as the Tenancy Act') Section 5(26) A defines 'landless person', and according to the definition, landless person means an agriculturist by profession and who cultivates or can reasonably be expected to cultivate land personally but does not hold any land, whether in his own name or in the same of any member of his joint family, or folds a fragment. Section 5(11-B) of the Tenancy Act defines 'fr

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1979 Supreme(Raj) 393

RAJASTHAN HIGH COURTS.K.Mal Lodha, J.Qurban And Anr - AppellantVersusState Of Rajasthan And Anr - RespondentS.B. Civil Writ Petition No. 887 of 1979.Decided On : 17-09-1979

The High Court will not ordinarily entertain a writ petition under Article 226 of the Constitution where an alternative and equally efficacious remedy is open to the aggrieved party, and the existence of an adequate legal remedy is a factor to be considered in granting writs.

Cases Referred (4)

RAJASTHAN HIGH COURT
S.K.Mal Lodha, J.
Qurban And Anr - Appellant
Versus
State Of Rajasthan And Anr - Respondent
S.B. Civil Writ Petition No. 887 of 1979.
Decided On : 17-09-1979