# Exec. Committ. of The Thauri Edu. Trust & Anr v. Addl. Commissioner (J) Ayodhya Mandal, Ayodhya & Ors

- **Citation:** (2021) 2 ILRA 737
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-03
- **Case number:** Misc. Single No. 2995 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/exec-committ-of-the-thauri-edu-trust-anr-v-addl-commissioner-j-ayodhya-mandal-46796
- **Pages:** 6

## Headnote

Civil Law-Alternative remedy-where rights
and liabilities determined under statuteremedy provided in the statute-no gross
injustice in the impugned order for court
to exercise judicial review.

W.P. dismissed. (E-7)

List of Cases cited: -

## Text

2 All. Exec. Committ. of The Thauri Edu. Trust & Anr. Vs. Addl. Commissioner (J) Ayodhya
 Mandal, Ayodhya & Ors.
737
(2021)02ILR A737
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.02.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 2995 of 2021

Exec. Committ. of The Thauri Edu. Trust &
Anr. ...Petitioners
Versus
Addl. Commissioner (J) Ayodhya Mandal,
Ayodhya & Ors. ...Respondents

Counsel for the Petitioners:
Sridhar Awasthi

Counsel for the Respondents:
C.S.C., Ajay Pratap Singh, Pankaj Gupta

Civil Law-Alternative remedy-where rights
and liabilities determined under statuteremedy provided in the statute-no gross
injustice in the impugned order for court
to exercise judicial review.

W.P. dismissed. (E-7)

List of Cases cited: -

1. Balkrishna Ram Vs U.O.I. & anr., 2020 (2)
SCC 442,

2. L. Chandra Kumar Vs U.O.I.; 1997 (3) SCC
261

3. St. of Tripura Vs Manoranjan Chakraborty &
ors.; 2001 (10) SCC 740

4. U.O.I. Vs St. of Haryana & anr.; 2000 (10)
SCC 482

5. Gujarat Agro Industries Co. Ltd. Vs. Municipal
Corporation of the City of Ahmedabad; 1999 (4)
SCC 468

6. Shyam Kishore Vs Municipal Corporation of
Delhi; 1993 (1) SCC 22
7. N.P. Ponnuswami Vs Returning Officer, AIR
1952 SC 64

8. Mool Chand & ors. Vs D.D.C. & ors.; 1995 (5)
SCC 631

9. Ram Adhar Vs Ram Roop Singh; 1968 (2)
SCR 95

10. Chattar Singh & ors. Vs Thakur Pal Singh
1975 (4) SCC 457

11. Satyanarayan Prasad Sah & ors. Vs St. of
Bih. & anr. 1980 Supp SCC 474

12. Bibi Rahmani Khatoon & ors. Vs Harkoo
Gope & ors. 1981 (3) SCC 173

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

(Oral)

1. Heard Sri Sudeep Seth, learned
Senior Advocate, assisted by Sri Sridhar
Awasthi,
learned
counsel
for
the
petitioners, Sri Upendra Singh, learned
Standing Counsel, Sri Ajay Pratap Singh,
learned counsel appearing on behalf of
respondent nos.3 and 4 and Sri Pankaj
Gupta, learned counsel appearing on behalf
of the respondent no.6.

2. This petition has been filed
challenging the order dated 02.03.2020
passed by the Additional Commissioner
(Judicial), Ayodhya Mandal, Ayodhya in
Appeal No.01825 of 2019: The Thauri
Educational
Trust
Vs.
Intermediate
College, Thauri and others, and also the ex
parte order dated 06.01.2015 passed by the
respondent no.2-Sub Divisional Magistrate,
Musafirkhana, District Amethi in Case
No.285/38/60/107/32 under Section 229-B
of the U.P.Z.A. & L.R. Act: Intermediate
College Thauri Vs. State of U.P. and
others. The petitioner also prays for
mandamus to be issued to the Sub-
738 INDIAN LAW REPORTS ALLAHABAD SERIES
Divisional Magistrate to record the name of
"The Thauri Educational Trust through its
Manager, Shri Suresh Chandra Srivastava,
son of Late Girija Prasad Srivastava" in the
revenue records by mutation, in place of
"Educational Trust Thauri Interimediate
College, through Manager, Shri Rajeshwar
Pratap Singh, son of Virendra Nath Singh",
with respect to Gata No.488, 889 and 2305
situated
in
Village
Thauri,
Pargana
Jagdishpur, Tehsil Musafirkhana, District
Amethi.

3. It has been submitted by learned
counsel for the petitioners that the order
dated 02.03.2020 passed in Revision has
ignored the order dated 05.03.2019 passed
in Writ Petition No.6321 (M/S) of 2019
and the order dated 08.04.2019 passed in
Special Appeal No.124 of 2019: Rajeshwar
Pratap
Singh
Vs.
Suresh
Chandra
Srivastava and others, where the Division
Bench has affirmed the interim order
granted by the Writ Court and directed that
till the writ petition is decided, status quo
with respect to the property of the Trust, as
it existed on that day to be maintained.

4. Learned counsel for the petitioners
has also referred to another order passed by
this Court in Writ Petition No.17339 (M/S)
of 2020: Executive Committee of "The
Thauri Educational Trust" & Another Vs.
Union of India Through Secretary Ministry
of Road Transport & National Highways
and others, wherein the Division Bench
had observed that the dispute regarding the
Society was pending in Writ Petition
No.6321 (M/S) of 2019 and in case
compensation amount is disbursed to
Rajeshwar Pratap Singh on acquisition of
land of the Trust, the said writ petition
would become infructuous and it will also
lead to multiplicity of the proceedings and
it will be very difficult to recover the
compensation of more than Rs.3 crores
from the respondent no.4, who is a private
party. This Court while granting time to the
respondents in the said writ petition had
directed the operation of the notice dated
14.09.2020 challenged in the petition to
remain stayed during the pendency of the
writ petition. The notice dated 14.09.2020
was issued under National Highways Act,
1956 to the respondent no.4 to complete
formalities for payment of compensation
amount for the land acquired for national
highway.

5. It has been submitted that the
orders of this Court were mentioned in the
pleadings and annexed with the Revision
No.01825 of 2019. It has also been
submitted
that
the
Additional
Commissioner had earlier by an order dated
07.01.2020 condoned the delay in filing of
the Revision by the petitioners against the
order dated 06.01.2015, but by the order
impugned dated 02.03.2020 the Additional
Commissioner had allowed the objections
of the private respondent and recalled his
order dated 07.01.2020 and rejected the
Revision on merits and also on delay, and
at the same time has also observed that
since
consolidation
operations
are
underway in the village concerned, the
matter be decided by the consolidation
courts and the case before he Revenue
Courts to have been abated under Section
4/5 of the Consolidation of Holdings Act.

6. Learned Senior Advocate has
pointed out other errors also in the order
dated 02.03.2020, which this Court does
not find appropriate to mention in detail in
this order as they are not germane to the
order proposed to be passed by this Court.

7. A preliminary objection has been
raised by the counsel for the Gaon Sabha
2 All. Exec. Committ. of The Thauri Edu. Trust & Anr. Vs. Addl. Commissioner (J) Ayodhya
 Mandal, Ayodhya & Ors.
739
and the State Respondent that against the
order dated 02.03.2020 passed by the
Additional Commissioner (Judicial), a
Second Appeal lies before the Board of
Revenue under Section 331(4) read with
Schedule I of the U.P. Z.A. & L.R. Act,
corresponding Sections 206, 208 of the
IIIrd Schedule of the U.P. Revenue Code.

8. It has also pointed out that since
consolidation operations have begun in the
village concerned, the remedy for the
petitioner lies before the Consolidation
Officer. If he has any grievance regarding
title being wrongly declared, he may file
his objection under Section 9 before the
Consolidation Officer.

9. Learned Senior Advocate on the
other hand has pointed out that it has been
held by Hon'ble Supreme Court in several
judgments that alternative remedy is not
always a bar to exercise writ jurisdiction.

10.

Learned
counsel
for
the
petitioners has referred to the judgment of
Hon'ble Supreme Court in Balkrishna Ram
Vs. Union of India and another, 2020 (2)
SCC 442, wherein the statutory remedy
before the Supreme Court was available
against the order passed by the Armed
Forces Tribunal, instead of before the High
Court.

11.

Learned
counsel
for
the
petitioners has referred to paragraph-11 of
the judgment which refers to Constitution
Bench observation in L. Chandra Kumar
Vs. Union of India; 1997 (3) SCC 261,
and also paragraph-14 of the judgment,
which has been read out to say that the writ
court normally refrains from exercising its
extraordinary power if the petitioner has an
alternative
efficacious
remedy.
The
existence of such remedy however does not
mean that the jurisdiction of the High Court
is ousted. At the same time, it is a well
settled principle that such jurisdiction
should not be exercised when there is an
alternative remedy available. The rule of
alternative remedy is a rule of discretion
and not a rule of jurisdiction. Merely
because the Court may not exercise its
discretion, is not a ground to hold that it
has no jurisdiction. There may be cases
where the High Court would be justified in
exercising its writ jurisdiction because of
some glaring illegality committed by AFT.
One
must
also
remember
that
the
alternative remedy must be efficacious and
in case of a Non-Commissioned Officer
(NCO), or a Junior Commissioned Officer
(JCO); to expect such a person to approach
the Supreme Court in every case may not
be justified. It is extremely difficult and
beyond the monetary reach of an ordinary
litigant to approach the Supreme Court.
Therefore, it would be open for the High
Court to decide in the peculiar facts and
circumstances of each case whether it
should exercise its extraordinary writ
jurisdiction or not. There cannot be a
blanket ban on the exercise of such
jurisdiction because that would effectively
mean that the writ court is denuded of its
jurisdiction to entertain such writ petitions
which is against the law laid down in L.
Chandra Kumar.

12.

Learned
counsel
for
the
petitioners has also referred to two orders
of Hon'ble Supreme Court, namely, State
of
Tripura
Vs.
Manoranjan
Chakraborty and others; 2001 (10) SCC
740, where the Supreme Court entertained
the Appeal of the State against the
judgment of High Court which had struck
down the provisos to Section 20 (1) and
Section 21 (2) of the Tripura Sales Tax Act.
The Hon'ble Supreme Court observed in
740 INDIAN LAW REPORTS ALLAHABAD SERIES
paragraph-4 that the provisions impugned
before the High Court were valid and also
observed that when gross injustice is done
by an order of the Writ Court then the
Supreme
Court
should
interfere
notwithstanding the alternative remedy
which may be available by way of an
Appeal under Section 20 or Revision under
Section 21. A Writ Court can in an
appropriate case exercise its jurisdiction to
do substantive justice.

13.

Learned
counsel
for
the
petitioners has also placed reliance upon
another order of Hon'ble Supreme Court in
Union of India Vs. State of Haryana and
another; 2000 (10) SCC 482, where the
Supreme Court considered the grievance of
the Union of India that the alternative
remedy is not an appropriate remedy. The
Union of India in discharge of its statutory
functions under the Indian Telegraph Act,
1885, for the purpose of providing
telecommunication facilities was providing
telephone connections to the subscribers.
The respondents were the respective States
of Haryana, Orissa, Uttar Pradesh and
Andhra Pradesh. In their respective Sales
Tax statutes, the State Governments had
made amendments so as to redefine the
words "purchase" and "sale" in order to
bring those in conformity with the
definitions given in Article 366 of the
Constitution. As a result of which,
respective Assessing Authorities under the
amended laws started assessing sales tax on
the rentals being charged for supply of
telephones. The Union of India had filed
several writ petitions in the respective High
Courts challenging the levy. The writ
petitions were dismissed by the High Court
on the ground of alternative remedy being
available in the form of statutory Appeal.
The statutory Appeal being before the
officers of Sales Tax Department was also
not found efficacious.

The Supreme Court had observed that
the question raised by the Union of India in
its writ petitions were fundamental in
character, as the respective Sales Tax
statute on amendment had redefined the
terms "purchase" and "sale". The Supreme
Court had further observed that the
question raised was pristinely legal which
required determination as to whether the
provision of telephone connection and its
instrument amounted to "sale" and even so
why the Union of India was not exempted
from the payment of Sales Tax under the
respective Statute.

14. This Court has carefully perused
the order passed by the Hon'ble Supreme
Court in the case of Union of India and
another Vs. State of Haryana and another
(supra), which is only an order entertaining
and allowing the SLP and directing the
respective High Courts to consider the
grievance raised by the Union of India on
its merits.

15. As is evident from the narration
of
the
facts
made
by
this
Court
hereinabove, the order passed by Hon'ble
Supreme Court in the aforecited case of
Union of India Vs. State of Haryana
(supra) was passed as Union of India had
questioned the very applicability of Sales
Tax to action taken by Union of India
under its statutory liability under the
Telegraph Act. Such an order which is not
a judgment passed in the peculiar facts and
circumstances of the case, cannot be said
to be laying down the law that even when
statutory remedy is available which is
equally efficacious, the High Court should
entertain a writ petition.
2 All. Exec. Committ. of The Thauri Edu. Trust & Anr. Vs. Addl. Commissioner (J) Ayodhya
 Mandal, Ayodhya & Ors.
741

16. This Court has also carefully
examined and perused the order passed by
Hon'ble Supreme Court in the case of State
of Tripura Vs. Manoranjan Chakraborty
and others (supra), where the statutory
requirement of pre-deposit for entertaining
the Appeal or Revision against the order
passed by the Assessing Authority was held
to be invalid. The Hon'ble Supreme Court
observed that the statutory provisions are
valid as the question of pre-deposit being a
condition for entertainment of Appeal or
Revision had already been decided by the
Supreme Court in Gujarat Agro Industries
Co. Ltd. Vs. Municipal Corporation of the
City of Ahmedabad; 1999 (4) SCC 468 and
also in the case of Shyam Kishore Vs.
Municipal Corporation of Delhi; 1993 (1)
SCC 22.

The order of the Supreme Court
clearly was in relation to an order passed
by the High Court which had struck down
the provisos relating to pre-deposits in
Tripura Sales Tax Act. The facts of the
case warranted the observations made by
Hon'ble Supreme Court in paragraph-4
that
notwithstanding
the
alternative
remedy which may be available by way
of an Appeal, a Writ Court can in an
appropriate case exercise its jurisdiction
to do substantive justice.

17. This Court has also carefully
perused the judgment of Hon'ble Supreme
Court in Balkrishna Ram Vs. Union of
India and Another (supra). The Supreme
Court was considering the question
whether the writ jurisdiction can be
exercised in respect of the orders passed
by the AFT since Appeal lies to the
Supreme Court against the orders of the
AFT as per the provisions of the Act of
2007. The Supreme Court relied upon the
judgment of L. Chandra Kumar Vs.
Union of India (supra), to observe that
the High Court under Article 226
exercises a Constitutional power of
judicial review which is a fundamental
and basic feature of the Constitution, and
in case of Non-Commissioned Officers
and Junior Commissioned Officers, if
such officers approach the High Court
against the order of the AFT, they should
not be asked by the High Court to
approach the Supreme Court as per the
AFT Act of 2007.

18. The judgment of Hon'ble
Supreme Court in the said case of
Balkrishna
Ram
(supra),
had
been
rendered
taking
into
account
the
judgment of Constitution Bench in the
case of L. Chandra Kumar Vs. Union of
India (supra), where the Court has clearly
stated that the power of judicial review
vests with the High Court even with
regard to orders passed by Central
Administrative Tribunals and this power
is part of the basic structure of the
Constitution vested in the High Court,
and could not be taken away by statutory
provisions
as
mentioned
in
the
unamended Administrative Tribunals Act
1985.

The Hon'ble Supreme Court in the
aforecited judgment has not held that in
every case where statutory remedy is
available which is equally efficacious, the
Writ Court should entertain a challenge
by a litigant.

19. This Court is bound by the
observations made by Hon'ble Supreme
Court in the case of N.P. Ponnuswami vs.
Returning Officer, AIR 1952 SC 64, where
the Supreme Court has observed that where
rights and liabilities are created under the
Statute and the remedy is provided in the
742 INDIAN LAW REPORTS ALLAHABAD SERIES
Statute itself, the litigant should first
approach the Statutory Appellate Authority
before approaching the High Court in writ
jurisdiction.

20. In this case, the petitioners' rights
and liabilities have been determined under
the U.P.Z.A. & L.R. Act, now replaced
with U.P. Revenue Code, and a statutory
remedy has already been provided in the
Schedule attached to the said Statute.

21. This Court does not find from the
order of the Additional Commissioner
(Judicial) impugned in this case that gross
injustice has resulted for this Court to
exercise its extraordinary jurisdiction of
judicial
review
as
the
Additional
Commissioner (Judicial) while rejecting the
First Appeal of the petitioner, has observed
that consolidation operations have begun in
the village concerned and it shall be open
for
the
petitioner
to
approach
the
consolidation courts under the appropriate
sections of the Consolidation of Holdings
Act.

22. The effect of Section 5(2)(a) of
the Consolidation of Holdings Act has
been considered by Hon'ble Supreme
Court in the judgment rendered in Mool
Chand and others Vs. Deputy Director
of Consolidation and others ; 1995 (5)
SCC 631, held in paragraph 9 and 23 that
suits
or
proceedings
relating
to
declaration of right or interest in the land
lying in the consolidation area shall stand
abated. The Supreme Court had relied
upon its earlier decision in the case of
Ram Adhar Vs. Ram Roop Singh; 1968
(2) SCR 95; Chattar Singh and others Vs.
Thakur Pal Singh 1975 (4) SCC 457;
Satyanarayan Prasad Sah and others Vs.
State of Bihar and another 1980 Supp
SCC 474; Bibi Rahmani Khatoon and
others Vs. Harkoo Gope and others 1981
(3) SCC 173.

23. This writ petition is dismissed
on the ground of statutory remedy alone
being available to the petitioner.

24. It shall be open for the petitioner
to
raise
all
his
claims
before
the
Consolidation
Courts
under
the
Consolidation of Holdings Act.
----------
(2021)02ILR A742
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.02.2021

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAY, J.
THE HON'BLE MANISH KUMAR, J.

Civil Misc. Review Application No. 4 of 2021
In Service Bench No. 1701 of 2000

State of U.P. & Ors. ...Applicants
Versus
Khushnoor Khan & Ors. ...Respondents

Counsel for the Applicants:
C.S.C.

Counsel for the Respondents:
--

A. Code of Civil Procedure, 1908-Section
114-application-condonation of delay in
filing review petition-rejection-the state
failed to file the review petition on time
and could not explain the reason of delay
of 1730 days-law of limitation binds
everyone including the Government-the
approach of the State all along has been
casual and that of manifest negligencewhen the matter was referred to the
Finance
Department,
the
reasons
indicating the delay for that period is not a
satisfactory explanation. (Para 1 to 20)