Biju N. v. District Collector, Civil Lines, Kollam; Tahsildar, Kulakkakada; Village Officer, Kulakkakada; Revenue Divisional Officer, Punalur; Agriculture Officer, Kulakkakada; Principal Agricultural Secretary, Department of Agriculture (Additional 6th Respondent)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941** ## **WP(C).No. 11529 of 2019** ## **PETITIONER :** **BIJU N. AGED 37 YEARS S/O. NARENDRAN, BETHEL COTTEGE, KULAKKADA P.O., ERATH KULAKKADA, KOTTARAKKARA TALUK, KOLLAM DISTRICT.** **BY ADVS. SRI.T.V.GEORGE SRI.JIMMY GEORGE (THADATHIL)** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR CIVIL LINES, KOLLAM-601013.** - **2 THE TAHSILDAR THALUK OFFICE, KOTTARAKKARA, KOLLAM-691506.** - **3 VILLAGE OFFICER VILLAGE OFFICE, KULAKKADA, KOLLAM-691521.** - **4 REVENUE DIVISIONAL OFFICER PUNALUR, KOLLAM-691305.** - **5 AGRICULTURE OFFICER KRISHI BHAVAN, KULAKKADA, KOLLAM-691001.** - ***ADDL. R6 PRINCIPAL AGRICULTURAL SECRETARY, DEPARTMENT OF AGRICULTURE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001 IS SUO MOTU IMPLEADED AS THE ADDITIONAL 6TH RESPONDENT VIDE ORDER DATED 12.4.2019** ## **BY SRI MANU RAJ K.J, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 11529 of 2019** **2** ## **JUDGMENT** The petitioner, who is stated to be the owner in possession and enjoyment of 02.40 Ares (5.05 cents) of land in Re.Sy.No.162/22 in Kulakkada Village in Kottarakkara Taluk, Kollam District covered by Sale Deed No.327/2016 of Kalayapuram Sub Registrar Office and Ext.P1 land tax receipt, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P9 notice dated 07.03.2019 issued by the 1[st] respondent. The petitioner has also sought for a writ of mandamus commanding the respondents to grant him sanction and permit to construct a residential building in the aforesaid property by allowing Exts.P4 and P7 applications, as the property is found to be reclaimed land, far prior to 2008, i.e., before the Kerala Conservation of Paddy Land and Wetland Act, 2008 **WP(C).No. 11529 of 2019** **3** came into force. 2. On 10.04.2019, when this writ petition came up for admission, this Court noticed that Ext.P9 order is revisable under Section 28 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. The learned counsel for the petitioner sought adjournment. 3. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 4. Ext.P9 order issued by the 1[st] District Collector, whereby the petitioner has been directed to restore the land in question, is an order passed by the said respondent in exercise of the powers under Section 13 of the Kerala Conservation of Paddy Land and Wetland Act, 2008, which is revisable before the additional 6[th] respondent Principal Agricultural Secretary in view of the provisions under Section 28 of the Act. 5. In _**Commissioner of Income Tax v. Chhabil**_ _**Das Agarwal [(2014) 1 SCC 603]**_ , the Apex Court **WP(C).No. 11529 of 2019** **4** 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. 6. 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 **WP(C).No. 11529 of 2019** **5** 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 **WP(C).No. 11529 of 2019** **6** 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. 7. 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 **WP(C).No. 11529 of 2019** **7** 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 **WP(C).No. 11529 of 2019** **8** the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 8. 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 **WP(C).No. 11529 of 2019** **9** 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. 9. 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 **WP(C).No. 11529 of 2019** **10** become final. 10. In view of the statutory remedy available under Section 28 of the Kerala Conservation of Paddy Land and Wetland Act, 2008, no interference on Ext.P9 order is warranted, invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India, on the grounds raised in this writ petition. 11. The learned counsel for the petitioner would submit that the petitioner shall file a revision petition before the additional 6[th] respondent, challenging Ext.P9 order of the 1[st] respondent District Collector, as provided under Section 28 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. 12. The learned Government Pleader would submit that if such a revision petition is filed before the additional 6[th] respondent, the said respondent shall consider the same and pass appropriate orders thereon, within a time limit to be specified by this Court. **WP(C).No. 11529 of 2019** **11** In such circumstances, this writ petition is disposed of with the following directions; - i) Within two weeks from the date of receipt of a certified copy of this judgment, the petitioner shall file a revision petition against Ext.P9 order, before the additional 6[th] respondent, invoking the provisions under Section 28 of the Kerala Conservation of Paddy Land and Wetland Act, 2008. - ii) The additional 6[th] respondent shall consider the said revision petition and pass appropriate orders thereon, strictly in accordance with law, with notice to the petitioner and after affording him an opportunity of being heard, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of such revision petition. - iii) It would be open to the petitioner to move an interim application in the revision petition filed before the additional 6[th] respondent, in which event, the said respondent shall pass appropriate orders on that application, within a period of two **WP(C).No. 11529 of 2019** **12** weeks. The petitioner shall produce a certified copy of this judgment along with a copy of the writ petition before respondents 1 and 6. **Sd/-** **ANIL K.NARENDRAN, JUDGE** AV/12/4 **WP(C).No. 11529 of 2019** **13** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TAX PAID RECEIPT OF THE YEAR 2017-2018 ISSUED FROM THE VILLAGE OFFICE, KULAKKADA ON 16.8.2017.** - **EXHIBIT P2 TRUE PHOTOGRAPH OF THE PRESENT SITUATION OF THE PETITIONER'S PROPERTY & NEIGHBOURING PROPERTY.** - **EXHIBIT P3 TRUE COPY OF THE REJECTION ORDER DATED 2.7.2018 ISSUED BY SECRETARY OF THE KULAKKADA GRAMA PANCHAYAT.** **EXHIBIT P4 TRUE COPY OF APPLICATION DATED 10.7.2018 BEFORE THE IST RESPONDENT, BY THE PETITIONER.** - **EXHIBIT P4 A TRUE COPY OF THE ENDORSEMENT MADE BY THE REVENUE DIVISIONAL OFFICER, IN EXT P4 APPLICATION.** - **EXHIBIT P4 B TRUE COPY OF THE ENDORSEMENT MADE BY THE DISTRICT COLLECTOR IN EXT P4APPLICATION.** **EXHIBIT P5 TRUE COPY OF STOP MEMO DATED 10.5.2017 ISSUED BY THE VILLAGE OFFICER, KULAKKADA.** - **EXHIBIT P6 TRUE COPY OF POSSESSION CERTIFICATE DATED 29.7.06 ISSUED BY THE VILLAGE OFFICER, KULAKKADA.** - **EXHIBIT P7 TRUE COPY OF APPLICATION BEFORE THE LOCAL LEVEL MONITORING COMMITTEE PREFERRED BY PETITIONER.** - **EXHIBIT P8 TRUE COPY OF DEMAND DRAFT DATED 11.7.2018 FOR RS.1,500/-** **EXHIBIT P9 TRUE COPY OF NOTICE DATED 7.3.2019 ISSUED BY THE 1ST RESPONDENT.**