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PETITIONER: JAI SINGH

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT19/11/1976

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ KRISHNAIYER, V.R.

CITATION:  1977 AIR  898            1977 SCR  (2) 137  1977 SCC  (1)   1

ACT:             Practice          and          procedure--Extra-ordinary         jurisdiction--Whether relief to be granted when  alternative         remedy availed of, and disputed questions of facts involved.

HEADNOTE:             The  appellant had leased some land from the  Government         of Rajasthan for mining gypsum. A dispute .arose between the         parties regarding the rate of royalty payable by the  appel-         lant.   The appellant’s revision petition against  the  les-         sor’s decision to charge at the higher rate was dismissed by         the  Central Government and then his writ petition was  dis-         missed  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 appel-         lant.         Dismissing the appeal the Court,.             HELD:  The  extent of purity of the gypsum  won  by  the         appellant  is  a question of fact. ’Furthermore,  after  the         dismissal  of  the writ petition the appellant has  filed  a         suit,  in which he has agitated the same question  which  is         the  subject  matter of the writ  petition.   The  appellant         cannot  pursue two parallel remedies in respect of the  same         matter at the same time.

JUDGMENT:         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 certificate is  against  the         order  of the Rajasthan High Court dismissing in limine  the         petition  under articles 226 and 227 of the Constitution  of         India,  field by the appellant against the’ Union of  India,         the State of Rajasthan and two 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

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       Government"of  Rajasthan on June  18, 1962 for  the  purpose         of  mining  gypsum ore for a period of 20  years.    Section         9(2)   of   the   Mines   and   Minerals   (Regulation   and         Development),Act, 1957 relates to. royaltries in respect  of         mining leases.   According to that provision, the holder  of         a mining lease granted on or after the commencement         138         of the said Act shall pay royalty in respect of any  mineral         removed  or  consumed  by him or by  his  agent,    manager,         employee, contractor or sub-lessee from the leased  area  at         the rate for the time being specified in the Second   Sched-         ule in respect of that mineral. The Second Schedule provides         at  item No. 13 the  rate  on  which royalty, etc.,  in  re-         spect  of gypsum is to be paid.   According to that item  at         the  relevant  time, royalty would .be at the rate   of  Rs.         1.25  per tonne of gypsum containing 85 per cent  and  above         CaSO42H20  and at the rate of 75 paise per tonne  of  gypsum         containing less than 85 per cent of CaSO42H20.             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 contained less than 85 per cent  of  CaSO42H20.         As against that, the stand taken by the respondents is  that         the appellant failed to furnish. the analysis reports from a         standard laboratory to show that gypsum won by him contained         less  than  85 per cent CaSO42H20.   Revision filed  by  the         appellant  against the decision of the Rajasthan  Government         to  charge  royalty at the rate of Rs. 1.25  per  tonne  was         dismissed by the Central Government.             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.             Mr.   Sobhagmal points out that the suit brought by  the         appellant has been dismissed in default and that an applica-         tion  for the restoration of the suit has been filed in  the         trial  court.   Learned counsel for the.  respondents  state         that  they would not oppose the application for  restoration         of the suit.  We, therefore, dismiss the appeal but with  no         order as to costs.         M.R.                                       Appeal dismissed.         139