S.B. CIVIL WRIT PETITION NO.2745/2009. Hanuman Prasad Vs. The State of Rajasthan & Ors. Date of Order :: 21st April 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Manoj Purohit, for the petitioner. ... BY THE COURT: Heard the learned counsel and perused the material placed on record. While adopting the proceedings under Section 91 of the Land Revenue Act, 1956 (‘the Act of 1956’) for alleged encroachment over 1 hectare of land of khasra No. 2388 at village Kuchaman City, the Tehsildar, Kuchaman City proceeded to issue notice to the petitioner on 13.03.2008 asking him to appear on 15.03.2008. On 15.03.2008, the petitioner moved an application before the said Tehsildar stating grievance that without decision in the matter, he was sought to be dispossessed and that matter be decided after allowing him some time to submit reply. However, the Tehsildar proceeded to dispose of the proceedings on 15.03.2008 itself while refusing to grant any time to the petitioner and declaring him trespasser over the Government land. The appeal taken by the petitioner under Section 75 of the Act of 1956 against the aforesaid order dated 15.03.2008 (Appeal No. 62/2008) came to be allowed by the Collector, Nagaur on 13.05.2008 (Annex.9) essentially on the consideration that the Tehsildar proceeded merely on the basis of the Patwari’s report without taking any documentary evidence on record and without extending adequate opportunity to the petitioner. The learned Collector found the impugned order having been passed in unnecessary haste and while setting the same aside remanded the matter to the Tehsildar for decision afresh after extending adequate opportunity to the petitioner. The order-sheets as placed on record by the petitioner in this writ petition show that after such remand, the Tehsildar extended several opportunities and adjourned the matter on 20.08.2008, 15.09.2008, and 06.10.2008 but thereafter proceeded to decide the same on 17.10.2008 with the observations that despite repeated opportunities, the petitioner failed to adduce the requisite evidence; and maintained the previous order dated 15.03.2008. The petitioner again submitted an appeal to the 2 Collector, Nagaur (Appeal No.107/2008) now questioning the order dated 17.10.2008. This appeal was filed belatedly but the learned Collector considered it appropriate to condone the delay while taking a lenient view of the matter. The learned Collector found that after the remand order dated 13.05.2008, the subordinate Court did extend opportunities for evidence but the appellant failed to adduce any evidence and remained absent at the time of hearing. The learned Collector observed that even in the appeal, the appellant failed to place on record any cogent evidence and there was no ground to interfere. The Collector has, therefore, proceeded to dismiss the appeal by the impugned order dated 04.03.2009 (Annex.14) (the date seems to have wrongly been mentioned as 04.03.2008). The aforesaid order dated 04.03.2009 (Annex.14) is sought to be questioned by the petitioner by way of this writ petition. While considering the matter at motion-admission, learned counsel was posed the question as to why the petitioner has chosen to approach this Court in writ jurisdiction directly against the appellate order passed by the Collector, Nagaur without taking resort to the appropriate remedies under the Act of 1956 to which learned counsel submitted that the petitioner is being sought to be dispossessed from the land 3 in his possession without fair trial and that is in infringement of his fundamental right. Learned counsel has referred to and relied upon a decision of the Hon’ble Supreme Court in the case of Dwarka Prasad Agarwal (D) By LRs & Anr. Vs. B.D. Agarwal & Ors.: (2003) 6 SCC 230. The submissions as made by the learned counsel for the petitioner have their own shortcomings and hardly make out a case for by-passing of statutory remedies by the petitioner. As noticed above, the proceedings have been adopted under Section 91 of the Act of 1956; and on the earlier occasion, when the Tehsildar proceeded to pass the order against the petitioner in a haste, the learned Collector did not approve the same and while allowing the appeal filed by the petitioner remanded the matter for decision after extending adequate opportunity to the petitioner. Prima facie, it appears that several adjournments were granted but the petitioner failed to adduce the requisite evidence before the Tehsildar who proceeded to pass the order dated 17.10.2008. The petitioner then took the matter in appeal and the learned Collector this time did not find denial of opportunity to the petitioner and further noticed that the petitioner had not been able to adduce cogent evidence. 4 In view of the proceedings adopted by the learned revenue authorities, it cannot be said that the authorities have compromised on due process of law or have proceeded beyond their statutory powers. The decision in Dwarka Prasad Agarwal’s case (supra) proceedings on its own facts has no application to the present case and in any case, it cannot be said that the respondent authorities have altogether denied fair opportunity to the petitioner. This Court would not like to make further comments herein for the petitioner is proposed to be relegated to the alternative statutory remedy. Suffice is to point out that there is no reason in this case wherefor the petitioner be permitted to maintain directly a writ petition to this Court against the order passed by the Collector concerned in an appeal under Section 75 of the Act of 1956. For availability of alternative statutory remedy under the Act of 1956, exercise of writ jurisdiction in this matter is refused; and the writ petition stands rejected. (DINESH MAHESHWARI), J. //Mohan// 5