JAI SINGH versus UNION OF INDIA & ORS.

JAi SINGH

UNION OF INDIA & ORS.

November 19, 1976 [H. R. KHANNA AND V. R. KRISHNA IYER, JJ.]

Practice and procedure-Extra-ordinary jurisdiction-Whether relief to be granted when alternative remedy availed of, and disputed q11estio11s of facts involl'ed.

The appellant had leased some land from the Government of Rajasthan for mining gypsum; dispute arose between the parties regarding the rate of royalty payable by the appellant. The appellant's revision petition against the lessor's ·decision to charge at the higher rate was dismissed by the Central Government and then his writ petition was dismissed by the High Court on the grounds that the matter involved determination of disputed questions of fact, and that an alternative remedy has been availed of by the appellamt.

Dismissing the appeal the Court,

HELD : The extent of purity of the gypsum won by the appellant is ques-1ion of fact. Furthermore, after the dismissal of the writ petition the appellant has filed suit, in which he ha~ agitated the same question which is the subject matter of the wr.it petition. The appellant cannot pursue two parallel remedies .in respect of the same matter at the same time.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2206 of 1968.

From the Judgment and Order dated the 29-3-1968 of the Rajasthan High Court in D. P. Civil W. P. No. 257 /68.

S. M. Jain, for the appellant

B. Dutta, for respondent No. 1

Miss Maya Rao, for respondents Nos. 2-5.

The Judgment of the Court was delivered by

KHANNA, J. This appeal on C<!_rtificate is against the order of the Rajasthan High Court dismj.ssing in limine the petition under arti-cles 226 and 227 of the Constitution of India, field by the appellant against the Union of India, the State of Rajasthan and twoi others, praying for quashing the demand made from the appellant in respect of royalty.

The appellant took on lease 180 acres of land from the Govern-;ment o~ Rajasthan on June 18, 1962 for the purpose of mining gypsum ore; for period of 20 years. Section 9(2) of the Mines and Minerals (Regulation and Development) Act, 1957 relates to royalties in respect of mining leases. According to that provision Jhe holder of mining lease granted on or after the commencement

of the said Act shall pay royalty in respect of any mineral removed. or consumed by him or by his agent, manager, employee, con-tractor or sub-lessee from the leased area at the rate for the time being specified in the Second Schedule in respect of that mineral. The Second Schedule provides at item No. 13 the rate on which. royalty, etc., in respect of gypsum is to be paid. According to that item at the relevant time, royalty would pe at the rate of Rs. 1.25 per tom1e of gypsum containing 85 per cent and above CaS042H20· and at the rate of 75 paise per tonne of gypsum containing less than 85 per cent of CaS042H20.

Royalty was demanded from the appellant in respect of gypsum won by him at the rate of Rs. 1.25 per tonne. The case of the appellant, however, is that the gypsum which was won by him con-tained less than 85 per cent of CaS042H20. As against that, the stand taken by the respondents is that the appellant failed to furnish the analysis reports from standard laboratory to show that gypsum won by him contained less than 85 per cent CaS042H20. Revision filed by the appellant against the decision of the Rajasthan Govern-ment to charge royalty at the rate. of Rs. 1.25 per tonne was dis-missed by the Central Government.

The High Courtj dismissed the writ petition on the ground that it involved detetmination of disputed questions of fact. It was also observed that the High Court should not in exercise of its extra-ordinary 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 view different from that taken by/ the High Court. There cannot, in our opinion, be any doubt on the pqint that the extent of purity of the gypsum won by; the appellant is question of fact. It has also been brought to our notice that after the dismissal of th({ writ petition by the High Court, the appellant has filed 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. Mr. Sobhagmal points out that the suit brought by the appellant has been dismissed in default and that an application for the res-toration of thei suit has been filed in the trial court. Learned coun-sel for thei respondents state that they would not oppose the appli-cation for restoration of the suit. We, therefore, dismiss the appeal' but withl no order as to costs.

Appeal dismissed~