The remedy provided under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 is not an efficacious remedy capable of redressing the injury envisaged under sub-clauses (b) and (c) of clause (2) of Article 226 of the Constitution of India.

PREM CHAND JAIN, J.

1. Mst. Wahidi Begum has filed to petition under Articles 226 and 227 of the Constitution of India for the issuance of an appropriate writ, order or direction quashing the order of the Chief Settlement Commissioner, as well as the instructions issued by the Deputy Secretary to the Government of Haryana, Rehabilitation Department.

2. The case of the petitioner is that her father Khan Sahib Abdul Ghafoor Khan had agricultural land in village Mohamadpur Sofar and Meghanwali, Tehsil Fatehabad, District Hissar, that Khan Sahib Abdul Ghafoor Khan had not migrated to Pakistan at the time of the partition of the country and died at Hissar in 1955, that as he had stayed in India as an Indian national, on his application his property was restored to him by the Central Government, that on his death the petitioner succeeded to 1/4th share in the agricultural land left by him in these two villages, that the petitioners entitlement for allotment of her share out of her father s property came to be 112-41/2 Standard Acres, that because of canal irrigation the value of the land having been increased, the petitioner was allotted 29.14 Standard Acres in lieu of the allotment to which she was entitled, that this allotment had been made on the basis of the directions issued in letter No. 1(33) G-1.23837-42/68, dated 30th of December, 1968 issued by the Deputy Secretary to Government, Haryana, Rehabilitation Department, that the petitioner contested the allotment and that in the litigation failed up to the Chief Settlement Commissioner Haryana, who declined to interfere on the basis of the said instructions. It is on the basis of these facts that the present petition was filed.

3. In response to the notice by this Court, State of Haryana contested the case of the petitioner on various grounds. A preliminary objection about the maintainability of the writ was also raised as the petitioner had not availed of the alternate remedy available to her under Section 33 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 hereinafter referred to as the Act). Initially, when the petition came up for hearing before a learned single judge of this Court, the preliminary objection was pressed an behalf of the State of Haryana. Finding some conflict in the judicial decisions of this Court, the learned single Judge vide his order dated 20th of October, 1978, referred the matter to a larger Bench.

4. On reference, the matter came for hearing before a Division Bench of this Court. Considering the importance of the preliminary objection, the Division Bench chose to refer the case to be decided by a larger Bench and that is how we are seized of the matter.

5. By way of preliminary objection, what was sought to be argued by Mr. Naubat Singh, Senior Deputy Advocate General (Haryana) was that the present petition stood abated in view of the provisions of Section 58(2) of the 42nd Amendment Act, that after the 42nd Amendment, the question of efficacious remedy did not arise clause (3) of Article 226 of the Constitution did not contemplate that such a remedy should be efficacious one and that as the statute itself provides for another remedy by way of a petition before the Central Government, a petition under Article 226 is barred.

6. On the other hand, it was submitted by Mr. Wasu, Senior Advocate, learned counsel for the petitioner, that the bar contemplated under Clause (3) arises only when there is another remedy which is equally speedy, efficacious and adequate, that such an intention of the Parliament could be deduced from the reading of sub-clauses (b) and (c) of Clause (1) of Article 226 of the Constitution, that the word remedy by itself postulates that it should be adequate and efficacious and should be real and not illusory, that the remedy as provided for under S.33 of the Act is not a remedy at all inasmuch as the petitioner is not heard by the authority before passing any order against him and that the power exercis