- (1.) PRESENT writ petition has been filed under Article 227 of the Constitution of India for issuance of an appropriate writ/ order/ direction to the respondents for quashing and setting aside the order dated 10.5.2011 (Annexure-4) passed in Pradhani Appointment Case No. 397 of 2007-08 by the learned Sub Divisional Officer, Dumka, rejecting the application filed under Sections 5 and 6 of the Santhal Pargana Tenancy Act.
(2.) LEARNED counsel for the petitioner submitted that the appointment of Pradhan can only be made on the basis of hereditary claim under Section 6 or under Section 5 of the Santhal Pargana Tenancy Act on the basis of consent of at least two-third Jamabandi Raiyats of the village. It is submitted that the petitioner has filed an application after the death of his father, who was last Pradhan of Pradhani Mouza on the basis of hereditary claim. The Sub Divisional Officer called for a report from the Circle Officer, Saraiyahat and on the perusal of the same, the Sub Divisional Officer, Dumka appointed the petitioner as Village Pradhan on the basis of Section 6 of the Santhal Pargana Tenancy Act and thereafter, the matter was challenged by way of revision before the learned Deputy Commissioner, Dumka and vide order dated 18.6.2008, the matter was remanded to the Sub Divisional Officer for taking a fresh decision after due inquiry and after hearing both the parties. Accordingly, the Sub Divisional Officer has passed an order rejecting the application filed by the present petitioner. It is further submitted that the Sub Divisional Officer has no authority or power or jurisdiction to declare the Mauza as "Khas Village". In this context, learned counsel for the petitioner has referred to and relied upon the provisions contained in Sections 5 and 6 of the Santhal Pargana Tenancy Act, 1949 and submitted that though the matter was remanded to the Sub Divisional Officer for taking a fresh decision , but the Sub Divisional Officer has not properly considered the entire issue and rejected the application preferred by the present petitioner and therefore, the petitioner was constrained to approach this Court by preferring this writ petition. As against that, learned counsel for the respondent-State submitted that the Sub Divisional Officer has passed the order after careful consideration of the facts and circumstances of the case as also the provisions of law. It is further submitted that the Sub Divisional Officer has not declared the Mauza as "Khas Village" but has passed the order in consonance with the provisions contained in Section 5 as well as Section 6 of the Santhal Pargana Tenancy Act. Learned counsel has also referred the definition of "Khas Village" as provided under the Act. It is further submitted that the order passed by the Sub Divisional Officer is appellable order and the present petitioner has approached this Court without preferring statutory appeal as provided under Section 57 of the Act and therefore, on this ground, this writ petition may be rejected. Considering the aforesaid rival submissions and on perusal of the impugned order, it appears that the Sub Divisional Officer has passed the order vide Annexure-4 in Pradhani Appointment Case No. 397 of 2007-08 as the matter was remanded by the learned Deputy Commissioner for fresh hearing to decide the issue in accordance with law. On perusal of the order, it appears that the application preferred by the present petitioner has been rejected by the Sub Divisional Officer after assigning reasons for rejection. It appears that the said order is appellable under Section 57 of the Santhal Pargana Tenancy Act. In the present case, petitioner has approached this Court, without availing alternative efficacious remedy provided under Section 57 of the Act, mainly on the ground that Sub Divisional Officer has committed jurisdictional error while declaring the Mauza as "Khas Village". Learned counsel for the petitioner pointed out that the matter was remanded with specific observation and direction to the Sub Divisional Officer to decide the matter in accordance with the provisions contained in Section 6 of the Santhal Pargana Tenancy Act; however, the Sub Divisional Officer has not properly considered the said provision and has committed an error while passing the said order, therefore, no fruitful purpose will be served by preferring an appeal and the petitioner has approached this Court under writ jurisdiction as the Sub Divisional Officer has committed an error while exercising his jurisdiction. These submissions of the learned counsel for the petitioner cannot be accepted. As statutory remedy of appeal is available under Section 57 of the Act, this ground can be agitated/ canvassed before the appellate authority and the appropriate order, according to law, can be passed by the appellate authority and since the statutory remedy is provided under the Act, the writ jurisdiction under Article 227 of the Constitution of India cannot be exercised unless extra-ordinary circumstances are prevailing in the matter. Hon'ble Apex Court in the case of Kanaiyalal Lalchand Sachdev versus State of Maharashtra, reported in (2011) 2 SCC 782 in para-23 held as follows: "23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person......."
(3.) HAVING regard to the facts and circumstances of the present case, this Court is of the view that the petitioner has alternative efficacious remedy available under law and therefore, the present petition is deserved to be rejected. Hence, the same is rejected. However, it is clarified that in the event of preferring appeal by the present petitioner the delay if any caused on account of pendency of the present petition shall not come in the way of petitioner in preferring the appeal. The appellate authority shall consider the application for condonation of delay if any at the time of preferring appeal by the present petitioner accordingly.;