Chittur Vettaikkorumakan Kavu Kshethra Committee v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE P.G.AJITHKUMAR ``` ``` MONDAY, THE 22[ND] DAY OF MAY 2023 / 1ST JYAISHTA, 1945 ``` ``` W.P.(C)NO.16051 OF 2023 ``` ``` PETITIONER: ``` ``` CHITTUR VETTAIKKORUMAKAN KAVU KSHETHRA COMMITTEE, REP. BY ITS SECRETARY, CHITTUR, PALAKKAD DISTRICT, PIN - 678101 ``` ``` BY ADVS. RAJESH SIVARAMANKUTTY ARUL MURALIDHARAN ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, REVENUE (DEVASWOMS) DEPARTMENT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 COCHIN DEVASWOM BOARD, REP. BY ITS SECRETARY, OFFICE OF THE COCHIN DEVASWOM BOARD, ROUND NORTH, THRISSUR, PIN - 680001`** - **`3 THE SECRETARY, COCHIN DEVASWOM BOARD, OFFICE OF THE COCHIN DEVASWOM BOARD, ROUND NORTH, THRISSUR, PIN - 680001`** - **`4 THE SPECIAL DEVASWOM COMMISSIONER, COCHIN DEVASWOM BOARD, OFFICE OF THE SPECIAL DEVASWOM COMMISSIONER, COCHIN DEVASWOM BOARD, ROUND NORTH, THRISSUR, PIN - 680001`** - **`5 THE SPECIAL TAHSILDAR (LC UNIT) OFFICE OF THE SPECIAL TAHSILDAR,(LC UNIT),`** 2 W.P.(C)No.16051 of 2023 ``` COCHIN DEVASWOM BOARD, THRISSUR, PIN - 680001 ``` ``` 6 V. MANOJ, AGE AND FATHER'S NAME NOT KNOWN, KARUNYA, THARAKKALAM, CHITTUR POST, PALAKKAD DISTRICT, PIN – 678101 ``` ## **`OTHER PRESENT:`** ``` SRI S.RAJMOHAN -SR. GOVERNMENT PLEADER ; SRI K.P.SUDHEER- STANDING COUNSEL, COCHIN DEVASWOM BOARD ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 W.P.(C)No.16051 of 2023 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner, namely, Chittur Vettaikkorumakan Kavu Kshethra Committee, represented by its Secretary is before this Court in this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P17 order dated 11.04.2023 of the 5[th] respondent Special Tahsildar (LC Unit), Cochin Devaswom Board. The petitioner has also sought for a declaration that respondents 2 to 5, namely, the Cochin Devaswom Board and its officials have no right or authority to initiate proceedings leading to Ext.P17, invoking the provisions under the Land Conservancy Act; and a declaration that the petitioner committee is entitled to continue in possession and management of Vettaikkorumakan Kavu and its lands by virtue of Ext.P10 proceedings under the Kerala Land Assignment Rules, 1964. 2. Heard the learned counsel for the petitioner, the learned Senior Government Pleader for the 1[st] respondent and the learned Standing Counsel for Cochin Devaswom Board for respondents 2 to 5. Considering the nature of relief proposed to be granted, service of notice on the 6[th] respondent is dispensed 4 W.P.(C)No.16051 of 2023 with. 3. The main relief sought for in this writ petition is a writ of certiorari to quash Ext.P17 order dated 11.04.2023 of the 5[th] respondent Special Tahsildar. 4. On the maintainability of the writ petition, the learned Senior Government Pleader and the learned Standing Counsel for Cochin Devaswom Board would point out the provisions under Section 16 of Kerala Land Conservancy Act, 1957, whereby an order in the nature of Ext.P17 is appealable before the Revenue Divisional Officer. 5. In **Commissioner of Income Tax v. Chhabil Das Agarwal [(2014) 1 SCC 603]** the Apex Court held that nonentertainment 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 5 W.P.(C)No.16051 of 2023 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 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** , 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** 6 W.P.(C)No.16051 of 2023 **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. 7. In **Thansingh Nathmal** 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 7 W.P.(C)No.16051 of 2023 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. 8. In **Titaghur Paper Mill** 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 8 W.P.(C)No.16051 of 2023 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 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 W.P.(C)No.16051 of 2023 9. In **Balkrishna Ram v. Union of India [(2020) 2 SCC 442]** one of the issues raised before the Apex Court was whether an appeal against an order of a single judge of a High Court deciding a case related to an Armed Forces personnel pending before the High Court is required to be transferred to the Armed Forces Tribunal or should be heard by the High Court. The Apex Court held that sub-section (1) of Section 14 of the Armed Forces Tribunal Act, 2007 clearly provides that the Armed Forces Tribunal will exercise powers of all Courts except the Supreme Court or High Court exercising jurisdiction under Article 226 and Article 227 of the Constitution of India. Section 34 is very carefully worded. It states that 'every suit', or 'other proceedings' pending before any Court including a High Court immediately before the establishment of the Tribunal shall stand transferred on that day to the Tribunal. The Legislature has clearly not vested the Armed Forces Tribunal with the power and jurisdiction of the High Court to be exercised under Article 226 of the Constitution. There can be no manner of doubt that the High Court can exercise its writ jurisdiction even in respect of orders passed by the Armed Forces Tribunal. Since an appeal lies to the Supreme Court against an order of the Armed Forces 10 W.P.(C)No.16051 of 2023 Tribunal, the High Court may not exercise their extraordinary writ jurisdiction because there is an efficacious alternative remedy available but that does not mean that the jurisdiction of the High Court is taken away. In a given circumstance, the High Court may and can exercise its extraordinary writ jurisdiction even against the orders of the High Court [sic: Armed Forces Tribunal]. 10. In **Balkrishna Ram** the Apex Court held that the principle that the High Court should not exercise its extraordinary writ jurisdiction when an efficacious alternative remedy is available, is a rule of prudence and not a rule of law. The Writ Courts normally refrain from exercising their extraordinary power if the petitioner has an alternative efficacious remedy. The existence of such remedy however does not mean that the jurisdiction of the High Court is ousted. At the same time, it is a well settled principle that such jurisdiction should not be exercised when there is an alternative remedy available - **Union of India v. T.R. Varma [AIR 1957 SC 882]** . The rule of alternative remedy is a rule of discretion and not a rule of jurisdiction. Merely because the Court may not exercise its discretion, is not a ground to hold that it has no jurisdiction. 11 W.P.(C)No.16051 of 2023 There may be cases where the High Court would be justified in exercising its writ jurisdiction because of some glaring illegality committed by the Armed Forces Tribunal. One must also remember that the alternative remedy must be efficacious and in case of a Non-Commissioned Officer (NCO), or a Junior Commissioned Officer (JCO); to expect such a person to approach the Supreme Court in every case may not be justified. It is extremely difficult and beyond the monetary reach of an ordinary litigant to approach the Supreme Court. Therefore, it will be for the High Court to decide in the peculiar facts and circumstances of each case whether it should exercise its extraordinary writ jurisdiction or not. There cannot be a blanket ban on the exercise of such jurisdiction because that would effectively mean that the Writ Court is denuded of its jurisdiction to entertain such writ petitions which is not the law laid down in ## **L. Chandra Kumar v. Union of India [(1997) 3 SCC 262]** . Ext.P17 order is appealable before the Revenue Divisional Officer, under Section 16 of the Kerala Law Conservancy Act. In such circumstances, without going into the merits of the rival contentions, this writ petition is dismissed as not maintainable, or without prejudice to the right of the petitioner to challenge 12 W.P.(C)No.16051 of 2023 Ext.P17 order, by invoking the statutory remedy provided under Section 16 of the Kerala Land Conservancy Act, before the concerned Revenue Divisional Officer. Sd/- **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** MIN 13 W.P.(C)No.16051 of 2023 ## **`APPENDIX OF WP(C) 16051/2023`** ## **`PETITIONER EXHIBITS`** - **`Exhibit P1`** ``` TRUE COPY OF THE ENTRY OF THE TEMPLE LAND IN THE BASIC TAX REGISTER ISSUED BY THE VILLAGE OFFICER, CHITTUR DATED 16-9-2020. ``` - **`Exhibit P2 TRUE COPY OF THE TEMPLE LAND IN BASIC TAX REGISTER ISSUED ON 23-1-2021 BY THE VILLAGE OFFICER, CHITTUR.`** - **`Exhibit P3 TRUE COPY OF THE ELECTRICITY CONSUMER DETAILS DOWNLOADED FROM THE WEBSITE OF KERALA STATE ELECTRICITY BOARD`** - **`Exhibit P4 TRUE COPY OF THE RECEIPT DATED 20-42022 AS PER RECEIPT NO. 1680752 FOR PAYMENT OF ELECTRICITY BILL IN THE NAME OF GOPALA MENON V ISSUED BY THE ELECTRICAL SECTION OF KERALA STATE ELECTRICITY BOARD, CHITTUR.`** - **`Exhibit P5 TRUE COPY OF THE LETTER DATED 12-52023 ISSUED BY CSB BANK, CHITTUR BRANCH TO THE PRESIDENT OF VETTAKKORUMAKAN KAVU, CHITTUR`** - **`Exhibit P6 TRUE COPY OF THE LETTER DATED 12-52023 ISSUED BY DHANALAXMI BANK, CHITTUR BRANCH CERTIFYING ACCOUNT OF VETTAIKKORUMAKAN KAVU MAINTAINED.`** - **`Exhibit P7 TRUE COPY OF THE AUDITORS REPORT DATED 3-5-2023 WITH RESPECT TO VETTAKKORUMAKAN KAVU, CHITTUR FOR THE YEAR ENDED 31-3- 2022 WITH INCOME AND EXPENDITURE ACCOUNT.`** - **`Exhibit P8 TRUE COPY OF THE COMMUNICATION DATED 9-10-2017 ISSUED BY THE TAHSILDAR, CHITTUR TO THE PRESIDENT, CHITTUR VETTAIKKORUMAKAN KAVU`** 14 W.P.(C)No.16051 of 2023 ``` Exhibit P9 ``` ``` TRUE COPY OF THE PETITION DATED 20-12- 2018 SUBMITTED BY THE PETITIONER - COMMITTEE TO THE DISTRICT COLLECTOR, PALAKKAD. ``` - **`Exhibit P10 TRUE COPY OF THE NOTICE DATED 4-1-2021 ISSUED BY THE TALUK OFFICE, CHITTUR.`** - **`Exhibit P11 TRUE COPY OF THE PLAINT DATED 28-22023 IN O.S. NO. 88/2023 FILED BY THE PETITIONER -COMMITTEE AGAINST 2 ND RESPONDENT PENDING IN THE MUNSIFF'S COURT, CHITTUR.`** - **`Exhibit P12 TRUE COPY OF THE REPORT AND ROUGH SKETCH SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S. NO. 88/2023 DATED 23-3-2023 BEFORE MUNSIFF'S COURT, CHITTUR.`** - **`Exhibit P13 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 20-3-2023 IN A22/2023 ISSUED BY 4TH RESPONDENT TO THE PRESIDENT OF PETITIONER- COMMITTEE.`** - **`Exhibit P14 TRUE COPY OF THE OBJECTIONS DATED 5-42023 SUBMITTED BY THE PETITIONER - COMMITTEE IN NO. A22/2023 TO THE 4 TH RESPONDENT.`** - **`Exhibit P15 TRUE COPY OF THE ORDER DATED 25-4-2023 IN C.NO.183/2022 PASSED BY THE HONORABLE OMBUDSMAN FOR TRAVANCORE AND COCHIN DEVASWOM BOARDS.`** - **`Exhibit P16 TRUE COPY OF THE LETTER DATED 23-22023 ISSUED BY THE SPECIAL TAHSILDAR, COCHIN DEVASWOM BOARD, THRISSUR TO THE HONORABLE OMBUDSMAN FOR TRAVANCORE AND COCHIN DEVASWOM BOARDS, COCHIN.`** - **`Exhibit P17 TRUE COPY OF THE ORDER NO.A22/2023 DATED 11-4-2023 ISSUED BY THE 4 TH RESPONDENT TO THE PETITIONERCOMMITTEE`**