THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION Nos.13160 AND 13168 OF 2010 11.06.2010 Between: K.Padma and others ….Petitioners AND The District Collector, Chittoor, And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION Nos.13160 AND 13168 OF 2010 COMMON ORDER: These writ petitions are filed challenging the order/proceedings No.Roc.B/43/2010, dated 27.03.2010 passed by Tahsildar, Vijayapuram Mandal, it is appropriate to dispose of both the cases by common order. The petitioners allege that the then Mandal Revenue Officer assigned land admeasuring Acs.3.74 in survey Nos.361-1, Acs.3.70 in survey No.361-5, Acs.3.70 in survey No.361-6 and Acs.4.70 in survey No.372-5 in favour of petitioners in W.P.No.13160 of 2010. It is also the case of petitioners in the other writ petition i.e., W.P.No.13168 of 2010 that the then Mandal Revenue Officer assigned lands to them pertains to same numbers on 06.01.1986. They allegedly obtained Pattadar Pass Books and raised mango garden. In some cases, the predecessors of petitioners were assigned lands and they died, after which petitioners allegedly succeeded to the property. The Tahsildar, Vijayapuram, initiated action under Section 4(1) of the Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977 (hereafter, POT Act) and issued notices to assignees and alienees in Form Nos.I and II vide RoC No.B/43/2010, dated 02.03.2010. The notices were issued in accordance with Rule 3 of Andhra Pradesh Assigned Lands (Prohibition of Transfers) Rules, 2007. The enquiry was also conducted which revealed that the assigned lands were purchased by M/s.Ashok Raj and K.Sudharsan Raj who are wealthy persons and that the lands assigned in favour of poor persons by way of D-form patta were purchased in violation of Section 3 of the POT Act. During service of notice, it was found that the assignees or legal heirs were non-residents of Vijayapuram Village and their whereabouts were not known. The notice was therefore tagged to a pole and planted in the land. No reply was received and therefore, the Tahsildar passed impugned order. A notice in Form No.II was also served on purchasers but they did not submit any explanation. Therefore, while ordering cancellation of DKT pattas and also resumption of land to the Government under Section 4(1)(a) of POT Act, the Tahsildar directed Additional Revenue Inspector, Vijayapuram to take possession of the land. The assignees as well as purchasers to whom the orders are communicated were informed by Tahsildar that an appeal would lie to Revenue Divisional Officer (RDO) under Section 4-A (1) of POT Act. The petitioners allege that they came to know that third respondent issued auction notice dated 04.06.2010 proposing to auction the mango crop in the land admeasuring Acs.32.54 comprised in survey No.361/1 to 6 and survey Nos.372/3 to 5 of Vijayapuram village. The auction is to be conducted on 14.06.2010. After coming to know about the auction notice, dated 04.06.2010, the petitioners filed appeal under Section 4-A (1) before RDO, Chittoor. They also sought interim orders of stay of auction scheduled on 14.06.2010. Alleging that immediate necessary orders are not passed, two days after filing the appeal before RDO, the petitioners filed the instant writ petitions on 10.06.2010. The counsel for petitioners submits that the notices were served on dead persons, that the orders passed by Tahsildar after serving notice of dead persons in Form Nos.I and II are non est in the eye of law, that the allegation that original assignees alienated the lands in favour of wealthy persons is incorrect and far from truth and that all the petitioners are landless poor persons who are in possession of the respective pieces of lands having raised mango crops therein. He vehemently contends that in the case of this nature, the RDO – appellate authority, ought to have stayed auction. The action of third respondent in conducting auction of mango crop even before expiry of period of limitation for filing appeal under Section 4-A (2) of POT Act is arbitrary and illegal. This Court has given anxious consideration to the passionate submissions made by counsel for petitioners. Judicial review – while exercising either mandamus jurisdiction or certiorari jurisdiction – is subject to many limitations. One such axiomatic limitation is Courts’ slowness in entertaining a petition when an effective alternative statutory remedy is available and especially when such remedy is availed. The other principle is when a statutory remedy is already availed or a common law remedy like suit is filed, a citizen is precluded from moving the Court of judicial review. The principle is too well settled. A reference may be made to the decisions of the Supreme Court in K.S.Rashid v ITI Commission[1], Carl Still G.M.B.H. v State of Bihar[2], Jai Singh v Union of India[3] a n d Bombay Metropolitan Region Development Authority v Gokak Patel Volkart[4]. In K.S.Rashid v ITI Commission (supra), a Constitution Bench of the Supreme Court held as follows. So far as the second point is concerned, the High court relies upon the ordinary rule of construction that where the legislature has passed a new statute giving a new remedy, that remedy is the only one which could be pursued. It is said that the Taxation on Income (Investigation Commission) Act, 1947, itself provides a remedy against any wrong or' illegal order of the Investigating Commission and under section 8 (5) of the Act, the aggrieved party can apply to the appropriate Commissioner of Income-tax to refer to the High court any question of law arising out of such order and thereupon the provisions of S. 66 and 66-A of the Indian Income-tax Act shall apply with this modification that the reference shall be heard by a bench of not less than three Judges of the High court. We think that it is not necessary for us to express any final opinion in this case as to whether section 8 (5) of the Act is to be regarded as providing the only remedy available to the aggrieved party and that it excludes altogether the remedy provided for under article 226 of the Constitution. For purposes of this case it is enough to state that the remedy provided for in article 226 of the Constitution is a discretionary remedy and the High court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. I n Jai Singh v Union of India (supra), the Supreme Court observed that when there are serious questions of disputed facts this Court need not exercise jurisdiction under Article 226 of the Constitution of India. It was observed therein thus: The High court dismissed the writ petition on the ground that it involved determination of disputed questions of fact. It was also observed that the High court should not in exercise of its extraordinary jurisdiction grant relief to the appellant when he had an alternative remedy. After hearing Mr. Sobhagmal Jain on behalf of the appellant, we see no cogent ground to take a view different from that taken by the High court. There cannot, in our opinion, be any doubt on the point that the extent of purity of the gypsum won by the appellant is a question of fact. It has also been brought to our notice that after the dismissal of the writ petition by the High court, the appellant has filed a suit, in which he has agitated the same question which is the subject-matter of the writ petition. In our opinion, the appellant cannot pursue two parallel remedies in respect of the same matter at the same time. In Carl Still v State of Bihar (supra), another Constitution Bench considered the question and held: It is next contended for the respondents that, whatever the merits of the contentions based on the construction of the contract, the proper forum to agitate them would be the authorities constituted under the Act to hear and decide disputes relating to assessment of tax, that it was open to the appellants to satisfy those authorities that there have been no sales such as are liable to be taxed, that indeed they were bound to pursue the remedies under the Act before they could invoke the jurisdiction of the court under Art. 226 and that the learned Judges of the High court were, therefore, right in declining to entertain the present petitions. It is true that if a statute sets up a tribunal and confides to it jurisdiction over certain matters and if a proceeding is properly taken before it in respect of such matters, the High court will not, in the exercise of its extraordinary jurisdiction under Art. 226, issue a prerogative writ so as to remove the proceedings out of the hands of the tribunal or interfere with their course before it. But it is equally well settled that, when proceedings are taken before a tribunal under a provision of law, which is ultra vires, it is open to a party aggrieved thereby to move the court under Art. 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. In Bombay Metropolitan Region Development Authority (supra), Supreme Court held as under. The contention of the appellant in this appeal is that in the first place the writ petition should not have been entertained. The writ petitioner had an adequate alternative statutory remedy. The writ petitioner had in fact already taken advantage of alternative remedy provided by the statute and had preferred an appeal against the judgment of the Tribunal. While the said appeal was pending the writ petitioner invoked the writ jurisdiction of the Bombay High Court praying more or less the same remedy as was prayed in the appeal. … We are of the view that the point taken by the appellant is of substance. This is a case, where there is not only the existence of an alternative remedy but the writ petitioner actually had availed of that remedy. The writ petitioner’s appeal before the statutory authority was pending. In that view of the matter this writ petition should not have been entertained. In view of the binding precedents, this Court is not inclined to interfere in the matter. Further, after getting instructions, learned Assistant Government Pleader for Revenue (Andhra Area) submits that the application for stay filed by petitioners along with appeals filed on 08.06.2010 have been dismissed today. If that be so, petitioners may pursue the remedy of appeal before RDO and/or file revision under Section 4-B (1) before the Joint Collector. In these writ petitions, no relief can be granted. These writ petitions are filed only with a view to stall the public auction of mango garden. Such a writ petition cannot be entertained. The writ petitions are therefore dismissed without any order as to costs. _______________ (V.V.S.RAO, J) 11.06.2010 Pln Note: Issue Order Copy by 14.06.2010. (By order) pln [1] AIR 1954 SC 207 [2] AIR 1961 SC 1615 [3] AIR 1977 SC 898 [4] (1995) 1 SCC 642