GOPALAKRISHNAN V. THE LAND REVENUE COMMISSIONER

WP(C)/13393/2019

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The case involves Gopalakrishnan, the petitioner, who owns a property in Kumarapuram village, Alappuzha District. He challenged an order (Ext.P4) issued by the District Collector, directing him to restore the land to its original condition under the Kerala Conservation of Paddy Land and Wet Land Act, 2008. The petitioner sought a writ of certiorari to quash this order, claiming it was unjust. The court, however, found that there was an adequate alternative remedy available through a revision petition under Section 28 of the same Act, and thus, declined to entertain the writ petition.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 692336 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 21-05-2019
• Assessment Year: misc
• Other Referred Cases: Commissioner of Income Tax v. Chhabil Das Agarwal, Authorised Officer, State Bank of Travancore v. Mathew K.C., Thansingh Nathmal v. Superintendent of Taxes, Titaghur Paper Mills Company Ltd. v. State of Orissa, Pavithran V. State of Kerala
• Laws Referred To: Kerala Conservation of Paddy Land and Wet Land Act, 2008
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: MANURAJ
• Assessee Lawyers: S KHAN; S
• Keywords: Alternative remedy; Revision petition; Writ jurisdiction; Writ of Certiorari; Land restoration
• Section: 13; 28

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941 WP(C).No. 13393 of 2019 PETITIONER: GOPALAKRISHNAN, AGED 52 YEARS, S/O.BHARGAVAN, VISHNU BHAVAN, THAMALLACKAL, KUMARAPURAM, HARIPAD, ALAPPUZHA DISTRICT. BY ADVS. SRI.S.SHANAVAS KHAN SMT.S.INDU RESPONDENTS: 1 THE LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM-695 033. 2 THE DISTRICT COLLECTOR, CIVIL STATION, ALAPPUZHA-688 001. 3 THE REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, CHENGANNUR ALAPPUZHA-689 121. 4 THE TAHSILDAR, TALUK OFFICE, KARTHIKAPPALLY, HARIPAD, ALAPPUZHA-690 514. 5 THE VILLAGE OFFCIER, VILLAGE OFFICE, KUMARAPURAM, HARIPAD, ALAPPUZHA DISTRICT-690 514. 6 THE AGRICULTURAL OFFICER, AGRICULTURE OFFICE, KARUVATTA NORTH, HARIPAD, ALAPPUZHA DISTRICT 690 544. 7 ADDL.R7-THE PRINCIPAL SECRETARY AND AGRICULTURAL PRODUCTION COMMISSIONER, AGRICULTURAL DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001 (R7 IS SUO MOTU IMPLEADED AS PER ORDER DATED 21.05.2019) SRI. MANURAJ K.J., GOVT.PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.05.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)13393 OF 2019 2 JUDGMENT The petitioner, who is stated to be the absolute owner and in possession of 21 ares 35 square meters of property comprised in Survey No.4275/2 (Resurvey No.419/9-3) of Kumarapuram village, covered by Ext.P1 sale deed bearing No.1158/2008 dated 21.05.2008 of Sub Registrar Office, Haripad, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 order dated 08.03.2019 issued by the 2nd respondent District Collector, whereby the petitioner has been directed to restore the property in question to its original position, which is an order issued by the said respondent, in exercise of the powers under Section 13 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. The petitioner has also sought for a declaration that he is not liable to restore 21 ares 35 square meters of property covered by Ext.P1 sale deed to its original position, as directed in Ext.P4. The further relief sought for is an order directing the 2nd respondent District Collector to reconsider the matter afresh, in accordance with the law. WP(C)13393 OF 2019 3 2. On 10.05.2019, when this writ petition came up for admission, the matter was adjourned to 17.05.2019 and thereafter to this date. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 4. The sole issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P4 order dated 08.03.2019 of the 2nd respondent District Collector, in exercise of the writ jurisdiction of this Court under Article 226 of the Constitution of India. 5. As already noticed, Ext.P4 order is one issued by the 2nd respondent in exercise of the powers under Section 13 of the Kerala Conservation of Paddy Land and Wet Land Act, whereby the petitioner has been asked to restore the land covered by Ext.P1 sale deed, to its original position. 6. Ext.P4 order passed by the 2nd respondent, in exercise of the powers under Section 13 of the Kerala Conservation of Paddy Land and Wet Land Act, is revisable before the Principal Secretary and Agricultural Production WP(C)13393 OF 2019 4 Commissioner, by filing a revision petition under Section 28 of the said Act. The said fact is not in dispute. 7. In Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603], the Apex Court held that non- entertainment of a writ petition under Article 226 of the Constitution of India when an efficacious alternative remedy is available is a rule and self imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution of India, despite the existence of alternative remedy. However, High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same, unless he has made out an exceptional case warranting such interference or there exists sufficient ground to invoke the extraordinary jurisdiction under Article 226. 8. In Authorised Officer, State Bank of Travancore v. Mathew K.C.[(2018) 3 SCC 85] the Apex Court reiterated that the discretionary jurisdiction under Article WP(C)13393 OF 2019 5 226 of the Constitution of India is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution of India ought not to be entertained if alternative statutory remedies are available, except in cases falling within the well defined exceptions as observed in Chaabil Das Agarwal's case (supra), i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. After referring to the law laid down in Thansingh Nathmal v. Superintendent of Taxes [AIR 1964 SC 1419] and Titaghur Paper Mills Company Ltd. v. State of Orissa [(1983) 2 SCC 433] the Apex Court held that High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of contains a mechanism for redressal of WP(C)13393 OF 2019 6 grievance. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 9. In Thansingh Nathmal's case (supra) a Constitution Bench of the Apex Court held that, the jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which WP(C)13393 OF 2019 7 demand an elaborate examination of evidence to establish the right to enforce for which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 10. In Titaghur Paper Mills' case (supra) a Three- Judge Bench of the Apex Court held that, the Orissa Sales Tax Act, 1947 provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by WP(C)13393 OF 2019 8 a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Water Works Co. v. Hawkesford [(1859) 6 CBNS 336] at page 356 in the following passage: \"There are three classes of cases in which a liability may be established founded upon statute ..... But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it ..... the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.\" The rule laid down in that passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd. [1919 AC 368] and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. [1935 AC 532] and Secretary of State v. Mask and Co. [AIR 1940 PC 105]. It has also been held to be equally applicable to enforcement of rights and has been followed by the Apex Court throughout. 11. In Pavithran V. State of Kerala (2009 (4) KHC WP(C)13393 OF 2019 9 4), a Full Bench of this Court held that, whenever an adverse order is passed against a person, unless the same is challenged before the appropriate forum, within the prescribed time limit, the said order will become final. 12. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that, when the petitioner is having a statutory remedy of revision under Section 28 of the Act before the additional 7th respondent Principal Secretary and Agricultural Production Commissioner, he cannot challenge Ext.P4 order, by invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in this writ petition. 13. The learned counsel for the petitioner would submit that the petitioner shall submit a revision petition before the additional 7th respondent, within two weeks from the date of receipt of a certified copy of this judgment. 14. The learned Government Pleader would submit that, if any such revision petition is received, the additional 7th respondent shall consider the same and pass appropriate orders thereon without any delay. WP(C)13393 OF 2019 10 15. Having considered the submission made by the learned counsel on both sides, this writ petition is disposed of as follows; (i) In view of the statutory remedy of revision available under Section 28 of the Kerala Conservation of Paddy Land and Wet Land Act, the petitioner cannot invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, in order to challenge Ext.P4 order dated 08.03.2019 of the 2nd respondent. (ii) The petitioner shall file a revision petition before the additional 7th respondent, along with an application for stay, within two weeks from the date of receipt of a certified copy of this judgment, challenging Ext.P4 order dated 08.03.2019 of the 2nd respondent. (iii) If any such revision petition along with an application for stay is received, within the aforesaid period, the additional 7th respondent shall consider the application for stay, with notice to the petitioner, and pass appropriate orders thereon, as expeditiously as possible, at any rate, within a period of two weeks from WP(C)13393 OF 2019 11 the date of receipt of such application. (iv) Thereafter, the additional 7th respondent shall consider the revision petition filed by the petitioner against Ext.P4 order and finally dispose of the same, within a further period of two months. Sd/- ANIL K. NARENDRAN JUDGE yd WP(C)13393 OF 2019 12 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE SALE DEED NO. 1158/2008 OF HARIPAD SUB REGISTRY OFFICE. EXHIBIT P2 TRUE COPY OF THE TAX RECEIPT DATED 19/7/2018. EXHIBIT P3 TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE NATURE OF THE PROPERTY. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 8/3/2019 OF THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS:NIL TRUE COPY P.A. TO JUDGE "