Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN MONDAY ,THE 11TH DAY OF MARCH 2019 / 20TH PHALGUNA, 1940 WP(C).No. 6626 of 2019 PETITIONER: MADHUKUMAR, AGED 56 YEARS S/O.LATE KRISHNA PANICKER, GOPALAKRISHNAMANDHIRAM, CHERTHALA,ALAPPUZHA. BY ADV. SRI.B.PRAMOD RESPONDENTS: 1 THE DISTRICT COLLECTOR, COLLECTORATE,ALAPPUZHA-688001. 2 REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, ALAPPUZHA-688543. 3 THE VILLAGE OFFICER, VAYALAR EAST VILLAGE, CHERTHALA TALUK-688536. 4 THE AGRICULTURAL OFFICER, AGRICULTURE OFFICE,VAYALAR KRISHI BHAVAN,PIN-688536. OTHER PRESENT: SRI K.P.HARISH, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 6626 of 2019 2
JUDGMENT
The petitioner, who is stated to be the owner in possession of 7.68 ares of property comprised in Survey No. this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P7 order, dated 22.01.2019 of the 1st respondent, District Collector.
2. On 06.03.2019, when this writ petition came for
consideration, the learned Senior Government Pleader pointed out that Ext. P7 order is revisable before the Government, in view of the provisions under Section 28 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008.
3. Heard the learned counsel for the petitioner and also the learned Senior Government Pleader appearing for the respondents.
4. 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 WP(C).No. 6626 of 2019 3
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.
5. 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 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
WP(C).No. 6626 of 2019 4
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 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.
6. 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
WP(C).No. 6626 of 2019 5
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 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.
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7. 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 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
WP(C).No. 6626 of 2019 7 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.
8. In Pavithran V. State of Kerala (2009 (4) KHC 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.
9. The fact that, Ext.P7 order passed by the 1 st
respondent is revisable under Section 28 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008, is not in dispute. In such circumstances, it is for the petitioner to invoke the statutory remedy available under Section 28, in order to challenge the said order.
10. In the result, this writ petition filed on 05.03.2019 is dismissed; however without prejudice to the right of the petitioner to challenge Ext.P7 order by filing a revision before the Government, invoking Section 28 of the Kerala Conservation of Paddy Land and Wet Land Act, 2008. WP(C).No. 6626 of 2019 8 The legal and factual contentions raised by the petitioner are left open to be raised before the first respondent, at appropriate stage.
Sd/- ANIL K. NARENDRAN, JUDGE DCS WP(C).No. 6626 of 2019 9 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE WILL DATED 17.06.2003 EXECUTED BY THE PETITIONERS FATHER AND MOTHER. EXHIBIT P2 TRUE COPY OF THE BASIC TAX RECEIPT DATED 15.05.2018. EXHIBIT P3 TRUE COPY 0F THE STOP MEMO DATED 08.10.2016 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF THE NOTICE ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT. EXHIBIT P5 TRUE COPY OF THE OBJECTION/EXPLANATION DATED 16.02.2018 SUBMITTED BY THE PETITIONER. EXHIBIT P6 TRUE COPY OF THE PHOTOGRAPHS OF THE PANCHAYATH ROAD AND PROPERTY OF THE PETITIONER. EXHIBIT P7 TRUE COPY OF THE ORDER DATED 22.01.2019 PASSED BY THE 1ST RESPONDENT.